With the recent midterm elections and spikes in crime, many people have dividing opinions on one very important topic: bail reform. Conservatives have been pushing back using scare tactics to invoke fear of “criminals walking free.” That was clearly the intent with the nickname for Illinois' new law, “The Purge Law,” referencing the 2013 horror film where all crime became legal for a 12 hour period. This is actually the SAFE-T act, which will take effect January 1st 2023, and makes Illinois the first state to abolish cash bail. However, pretrial release can be denied if a person poses any threat to any person or the community, a fact overlooked in “The Purge” media attention. Other states have passed laws reforming bail, with similar pushback. In January 2020, New York ended the assessment of cash bail for misdemeanors and nonviolent felonies, it was also amended in April of 2020 rolling back some exceptions for the use of cash bail. Since its inception it has met massive pushback, being blamed for the rise in crime by republicans and police officials, although studies show that there is no link between bail reform and increases in crime rates. This has made bail reform a focal point in this election for New York as well as other states including Wisconsin, North Carolina, Alabama and Ohio, highlighting the failures of past reform efforts.
The purpose of bail has strayed far from its original purpose. The American bail system was adopted from England, and was meant to ensure that a defendant would return to their trial. Today, however, bail is used as punishment forcing those who cannot pay to sit in jail, and since the median bail is $10,000 or 8 months’ income for the average detained person, many do. And pretrial detention can disrupt a person’s life even if they were only incarcerated for a short period, as being unable to pay bail is correlated with higher rates of job loss, emotional and financial stress on families and recidivism.
America established bail 1789, but it wasn't reformed until almost two centuries later in 1966. The first bail reform movement began when journalist Herbert Sturz discovered a majority of people in New York City jails were there simply because they could not afford bail. Working with philanthropist Louis Schweitzer, they created the Manhattan Bail Project (now the Vera Institute), which promoted the use of a risk-assessment system to base pretrial release on factors such as family and employment ties, and previous criminal records. The results of this project were shocking, it led to 46% increase in pretrial release without bail and of those released 98.4% returned for trial. The Manhattan Bail Project’s work led to the implementation of the federal Bail Reform Act in 1966, and bail-reform laws in several states. This included Illinois, Kentucky, Wisconsin, and Oregon outlawing the commercial bail bond industry in the 1970s. Washington D.C. also created a pretrial service system similar to that of the Manhattan Bail Project, and has become the figurehead for the benefits of pretrial services. Such reforms led to incarcerated felony pretrial defendants to drop by a third from 1962 and 1971.
Despite their obvious benefits these laws couldn’t stand long against the surge of the tough on crime movement of the 1980s. With rising crime, public support for preventative detention laws, which allows judges to detain people to maintain public order, grew rapidly. By 1984, thirty-four states had some form of preventative detention law, and the Bail Reform act of 1984 passed federal preventative detention law and undid most of the 1966 law’s reforms. The Bail Industry Coalition and the Conservative American Legislative Exchange Council lobbied to eliminate the remaining pretrial-service agencies to strengthen the commercial bail industry which grew strong after the 1970s. They were successful to the point where in the 1990s, being assigned money bail was more common than being released on your own recognizance (without bail).
Recently there has been a resurgence in bail reform as the failures of the 1960s movement are still apparent. The number of people in local jails from 1970 to 2015 increased 433%, mainly due to the increase in the use of cash bail, as today 80% of people in jail, over 400,000 people, are there pretrial because of unpaid bail. Kalief Browder’s story represents the real harm bail can have. Browder was alleged to have stolen a backpack at 16. His family could not afford bail and he stayed in Rikers Island for three years, mainly in solitary confinement, where he faced assaults from guards and other inmates. Eventually his case was dismissed and he returned home with PTSD and depression, and soon after he ended his life.
Kalief Browder at 21
The bail reform movement of 1966 was unsuccessful and quickly undone as were other state and local level reforms. Because of this, jail populations have risen dramatically and the impact of bail has deeply wounded low income communities, making comprehensive bail reform needed now more than ever. Recently there’s been a resurgence in bail reform efforts which have been crucial to making monumental steps forward in the right direction, including Illinois’ SAFE-T law and bail reform ballot measures passing in Ohio and Alabama. The recent movements give us an opportunity to fix a system we knew was broken in 1966 and stop the imprisonment of the poor and the irrevocable damages ensued.
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