What bail reform looks like across the U.S.

Find out more about our series Breaking the Bond here.

The vast majority of people who are arrested in this country cannot afford to pay bail — which is why states across the U.S. have tried to change the system.

Illinois became the first state to eliminate cash bail about a year ago. Far fewer defendants are locked up while they await trial. And so far, researchers say crime hasn’t gone up.

The numbers tell a similar story in Harris County, Texas, where a federal lawsuit ended cash bail for most misdemeanors in 2019.

Houston resident Terranisha Collins told us she could have gone to jail for a lot longer than she did after getting charged with a minor crime.

“I’d probably be in a homeless shelter because then I wouldn’t be able to afford my rent,” Collins says.

Instead, the single mom of eight got out of jail quickly and kept working.

On the other side, crime victim advocates say getting rid of cash bail removes a powerful incentive to straighten up.

Houston resident Michelle Chapa was the victim of an armed robbery and says the experience changed her life.

“Not having accountability, no responsibility and no consequences continues the cycle of crime,” Chapa says.

As our reporting on this topic wraps up, we wanted to take a look at bail reform in other places. The  Council on Criminal Justice’s Marc Levin is an expert on this topic. He also lives in Harris County, Texas.

How would you grade the effort to end cash bail in Houston?

“Well, the misdemeanor bail reform that started a few years ago and was triggered by litigation has been largely successful. And the reason I say that is that it's reduced the jail population of people that are awaiting trial for misdemeanors and the rates of people reappearing and staying free of crime during the pendency of their case has stayed the same or in some instances increased. It's gotten better.

“The felony bail has been a much more significant challenge and there's still a lot of work to do on that front. The state enacted some changes to actually make it for certain offenses more difficult to get released. But in terms of the local bail reform, that was triggered by the Fifth Circuit decision, which affirmed largely the lower court decision that focused entirely on misdemeanors.”

Illinois just got rid of money bail altogether. How much movement do you see right now, and why do you think this issue is having such a moment?

“Of course, normally we like to take a few years to do the research, but preliminarily, it's quite encouraging. The jail population is down and the public safety outcomes are promising. The Illinois reform was similar to New Jersey in that they made it easier for judges to deny bail to people that are extremely dangerous, that are being charged with very serious offenses, deny bail regardless of how much money they have.

“And like New Jersey, Illinois also invested in pretrial services and supervision, text reminders to show up to court. All the things we know from the research make sense. So the goal is really to say, ‘We don't want poor people in jail who are low risk to languish there,’ and at the same time, ‘We want to say people who, the serial killer or whatever, no matter how much money you have, yeah, we're going to deny bail.’”

What's the difference between having a legislature enact the reforms versus a federal lawsuit, which was the case here in Texas?

“I think that there's some limits to what can be accomplished through litigation, and courts are understandably reluctant to take an ongoing oversight role and to be accused of kind of overstepping their bounds. So I think ideally it's best to do it through our elected legislators, but the constitutional rights, both federal and state constitutions, speak to people's right to due process. And particularly there's the [United States v.] Salerno case, which Chief Justice [William] Rehnquist wrote, pre-trial detention should be the exception, not the norm. And it's critical that, I think, decisions on whether somebody stays in jail or not pre-trial be made on objective factors, not based on wealth.”

Have you noticed any efforts to reform bail across the country that have failed or fallen down?

“New York had some challenges, especially initially, I think partly it was because they did not invest in pretrial services and supervision. And particularly across the country you see in rural areas, smaller counties, they don't have someone who a defendant would report to. They don't have that capacity.

“And so, part of Illinois’ effort was standing that up, and also they increased funding for both prosecutors and indigent defense, looks like perhaps not quite enough, but they did make a substantial investment. And the reason that's important is, if you're going to have this really be done the right way, which is a hearing on whether to deny bail, the person needs counsel and the prosecutor needs to be there and actually having counsel at first appearance in every case is incredibly important because the decision on bail amount or the conditions or whether someone gets released has tremendous impact on the rest of the case.

“Because, for example, if somebody is released on supervision pre-trial, they get out and they're holding a job, they're stable, they're crime free. When their case actually comes up to be resolved, the court is much more likely to say, ‘You're doing great on pretrial services,’ which is basically like probation. ‘Why don't we just make it probation?’

“Where someone who's in jail pre-trial, they're much more likely to get sentenced to incarceration. Of course, their life's already been disrupted quite a bit. And again, in some cases, that's absolutely necessary from a public safety perspective, but we have to be very careful not to overuse it.”

Is it just blue states that are making changes to their bail systems? 

“I do think it's gotten a little more, I guess, partisan in the last few years. I think that was probably more because of what happened with New York, but historically, like Kentucky doesn't have commercial bail, and it's a obviously very red state.

“Kentucky's got a kind of populist political tradition where people are suspicious of not just big government, but also of private entities. And so I think that that's probably why historically Kentucky didn't have commercial bail and still doesn’t.”

This issue touches every hot button in American politics: race, economics, crime, crime statistics and how to interpret them. We heard from a law professor here who said that when bail reform starts, the backlash begins. Why do you think this is such a fraught issue?

“Honestly, one of the reasons is the bail bondsman and their lobby, they pay for a lot of advertisements, and they make obvious donations to candidates, and they put out a lot of information that I think causes the public to think that they do something that they don't.

They don't take any responsibility for public safety.”

Are you aware, as you look at the landscape across the country, of any states where a major change in bail policies has led to a rise in crime?

“I think it's very difficult to unpack. There have been some studies of New York and, of course, it's difficult because, first of all, they made changes to it subsequently to address some of the problems, but also, of course, you have a whole lot of other factors driving crime.

“Most crime is not committed by people who are on pretrial release, but, you know, here in Houston on the felony side, over the last seven or eight years, there have been about 200 homicides of people, most of them were on felony bail. Most of them paid a lot of money to a commercial bail bondsman and went on and committed a very serious crime.

“So, I feel incredibly bad for the victims of those offenses and that's why we need better assessment, objective assessment of individuals. We need, in Texas, to give judges more power to deny bail. In Texas, essentially they can only deny bail for capital murder. So not ordinary murder. Now, there's an effort, it looks like, they'll probably be enough support next session for a constitutional amendment that will change that.”

The United States is one of only two countries in the world that uses a commercial bail bond industry. Why have we done it this way for so long? 

“Well, I think there's an illusion that we're saving money by ‘outsourcing’ this. But when you think about it, it's like a requirement to buy insurance, which actually doesn't insure for public safety.

“Theoretically, the bail bondsman is saying, ‘I'll pay if this person doesn't show up,’ but actually if you look, they pay only a small percentage of the forfeitures. And they've had the law set up in Texas where they can keep appealing. It almost never happens.

“So that's why it really is important to move to a system like New Jersey did, which we now have a lot of years to study, that it's reduced their jail population and they've improved public safety because they're putting the right people in jail pre-trial, the people that would otherwise perhaps be committing another violent crime. And they're making sure people that are low risk get out immediately.

“Because if you're in jail for just a few days and you're low risk, you could lose your job, you could be evicted. So a whole cascading things happen that particularly for somebody who's low income, that's very hard for them to deal with.

“And by the way, a lot of the people coming into jail in many places, the most common offense is driving with a suspended license. So these are in some instances minor misdemeanors.”

This reporting was supported by the John D. and Catherine T. MacArthur Foundation.

Peter O'Dowd produced and edited this interview for broadcast with Catherine Welch. Allison Hagan adapted it for the web.