Photo illustration by John Lyman

U.S. News


Cash Bail Leads to Jail Overcrowding – And That’s a Waste of Your Tax Dollars

On any given day, an estimated 445,000 people are incarcerated in American jails before their trial has even begun. According to the Prison Policy Initiative, pretrial detainees represent more than two-thirds of jail populations.

Throughout the pandemic, disgruntled Americans have written countless thousands of words about excessive government spending and wasteful use of tax dollars. But one of the most egregious examples of wildly inefficient use of government money is the millions and millions of dollars spent each year on holding people in jail before their trial.

The American justice system promises a presumption of innocence before trial. Why, then, are so many resources expended on incarcerating those presumed innocent pretrial, in much the same way as they would be thrown behind bars if they had just been found guilty?

Cash bail is the heart of the problem. Judges often decide that defendants must fork out substantial bail sums if they want to remain free before their trial. If they are unable to pay up – which happens very often – they end up behind bars, sometimes for years, awaiting their trial. Every defendant who finds themselves in jail before their trial is an additional strain on America’s purse strings.

Holding people in jail before their trial is bad for justice outcomes, too. According to a new study, “The Hidden Costs of Pretrial Detention Revisited,” time spent in custody pretrial has no consistent public benefit. For example, increasing the amount of time spent in pretrial detention was consistently associated with an increased chance of rearrest.

Perhaps worst of all, the current system does not even achieve what it sets out to do – encouraging defendants to turn up at court. The research, based on data from almost 1.5 million people booked into jail in Kentucky between 2009 and 2018, found no relationship between the amount of time spent in pretrial detention and the odds of a defendant failing to appear in court.

The cash bail system, then, leads to overcrowding of jails and gratuitous wastage of tax dollars. It is harmful to both the defendant and the wider public and it represents yet another unnecessary logistical challenge for the already stretched American justice system.

The system badly needs rethinking. Firstly, we must stop so readily jailing people during the pretrial phase. Those who pose a serious threat to public safety must, of course, be kept behind bars but those cases should be treated as the exception, not the rule. There is no reason for you and me to pay, through our taxes, to incarcerate many thousands of people who do not need to be in jail and may yet be found innocent.

There are plenty of ways to get around the all-or-nothing approach of cash bail versus incarceration. For instance, other countries around the world have found creative ways of keeping tabs on pretrial defendants, such as having police regularly knock on their door to ensure they have not left town or asking them to sign in weekly at a police station. Even electronic tags are a much more efficient, less harmful alternative to pretrial jail time.

It is imperative we educate judges, prosecutors, and the public on how pretrial detention undermines community safety and wastes government resources. The current system is unnecessarily costly and does not make us any safer. We must reconsider it.