Five years ago, New Jersey enacted a groundbreaking reform of its cash bail system, eliminating bail for most nonviolent offenders. Other states, including New York, have followed suit with their own reforms, but the results have been mixed. Today, New Jersey and other states are still making adjustments to their bail systems.
Cash bail explained
Cash bail is a system under which a person who has been arrested and charged with a crime can be released from jail before their trial in exchange for a cash guarantee. If the defendant does not return for trial, they forfeit the money to the government.
To get the money, defendants typically secure a loan from a bail bond company. To compensate these commercial operations, the defendants must pay a nonrefundable fee, usually 10-15% of the bail amount, and provide collateral for the remainder of the amount. This collateral may be jewelry, a car or even a home. If the defendant fails to show up for their court hearing, the bail bond company keeps the collateral.
State law sets the bail amount in many cases, but judges usually have discretion to raise or lower the amounts, or to waive bail altogether and release defendants on their own recognizance.
Critics have long argued that the bail system has a discriminatory effect on the poor and people of color. Many defendants must wait in jail before their trials because they simply can’t afford bail. Studies have also shown that people of color tend to be given higher bail amounts than other defendants who are charged with similar crimes.
New Jersey’s reform sought to replace the bail system with a more thorough screening process. Instead of releasing defendants who can afford bail and holding defendants who can’t, courts now decide whether to release a defendant based on their determination of whether releasing the person would put the public at risk. Under this system, defendants accused of violent crimes are much less likely to be released before trial. Those accused of nonviolent crimes are much more likely to be released before trial.
Proponents say that the majority of defendants who are released before trial — more than 80% of them — are not arrested again before their trials. This suggests that the system is working, and that releasing more defendants does not lead to an increase in crime.
However, others say that the system is not doing enough. After all, if 80% of defendants aren’t being arrested again before their trials, that means that 20% of them are.
Earlier this year a 26-member panel of judges, attorneys, activists and more recommended a series of fixes to the law. One measure would require judges at a pretrial hearing to consider not only the current offense being charged, but also the defendant’s prior arrests. The theory here is that a person who has been arrested multiple times is more likely to re-offend, whether the offenses are violent or not.