Bail and Its Consequences
Most people who are arrested and booked into jail in the United States are required to pay bail to be released for the pretrial period (i.e., the time from arrest to final court trial) (Reaves, 2013). People may pay bail themselves, enlist the help of friends or family, or pay through a bail bond agent. Supposedly, requiring people to pay bail incentivizes them to return to court and not be arrested for a new crime in the pretrial period because they want to get their bail money back or avoid pursuit by a bond agent (Becker, 1968). Bail has been used for centuries (Schnake, 2018), but there is shockingly little evidence that it effectively prevents missed court dates or rearrest. And yet, both the use of bail and the bail amounts have risen steadily since the late 1980s. Because of these increases, anywhere from 4 to 9 out of 10 people held in jail pretrial are there because they cannot pay their bail (Human Rights Watch, 2010; New York City Criminal Justice Agency, 2018).
The consequences for being held in jail pretrial affect a person’s case and their life in disastrous ways. People who are held pretrial are more likely to be found guilty and to be sentenced to serve time in prison than people who are not held in jail pretrial, even when they are charged with the same types of crimes (Heaton, et al., 2017; Philips, 2012; Stevenson, 2018a). People held in jail also experience poorer mental and physical health and may lose access to employment, housing, and even their children (Ottone & Scott-Hayward, 2018; Rabinowitz, 2010; Smith, 2014).
Bail Reform in the United States
In the past several years, there has been renewed public awareness of the harms of holding people in jail pretrial; bail reform has received a great deal of attention. There is broad agreement that a system so focused on income is unfair, and, as a result, a major focus of reform is ending the use of money bail (Rabuy & Kopf, 2016). There is less agreement about what should replace money bail. Some widely used options include implementing strategies to prevent missed court dates and providing pretrial services and supervision, and implementing pretrial risk assessment instruments.
Preventing Missed Court Dates
There are many reasons a person might miss their court date that will not go away just because there is money on the line. For example, people may forget their court date or never receive information about it (Crozier & Garrett, 2020; Mahoney et al., 2001). People may also miss court if they experience family or childcare conflicts (Bornstein et al., 2012), work commitments (Crozier & Garrett, 2020), or transportation or language barriers (Mahoney et al., 2001). Court date reminders and increased access to courts might be strategies for removing these barriers. Specifically, court date reminders are phone calls, text messages, or postcards sent within a week or two of an upcoming court date. These reminders include information about the date, time, and location of a person’s scheduled court appearance. Live phone calls may be particularly helpful, as they would allow people to ask additional questions about things like parking availability or bus schedules (Thomas & Ahmed, 2021). Increased access to court includes extending court hours to nights and weekends, allowing people to email evidence (e.g., proof of a valid driver’s license), and holding court hours at community locations like churches and schools (Bernal, 2017; Turner, 2015). These strategies can prevent missed court dates by giving people the necessary information and making it easier to get to court.
Providing Pretrial Services and Supervision
Pretrial service agencies have been established across the nation (Pretrial Justice Institute, 2010) to provide supervision and services so people can be released pretrial but still have some level of intervention. Many think pretrial supervision is essential to bail reform, believing that judges will release more people pretrial if services are available to promote court appearance and community safety (National Association for Pretrial Services Agencies, 2020). However, pretrial supervision has come under scrutiny due to concerns about it being unnecessarily strict, the financial costs and time burden it imposes, the fact that it is used in addition to (rather than in lieu of) bail, and, perhaps most importantly, the lack of research supporting its effectiveness. In fact, most research has not found decreases in the rates of missed court dates or rearrests associated with pretrial supervision (Cadigan, 1991; Hatton & Smith, 2020; Grommon et al., 2017).
Implementing Pretrial Risk Assessment Instruments
Pretrial risk assessment instruments may support efforts to eliminate money bail by increasing uniformity and transparency in pretrial decisions (Desmarais & Lowder, 2019). Briefly, pretrial risk assessments are short, completed through record review and/or in-person interviews, and rely on an algorithmic approach to combine item ratings into risk scores (Desmarais et al., 2020). The results of these assessments should inform pretrial decisions. The large group of lower-risk people can be released without bail or any other conditions, and the small group of higher-risk people can generally be released, but may benefit from extra interventions (Desmarais & Lowder, 2019). Research suggests that pretrial risk assessment instruments are quite accurate at predicting who will be rearrested (Desmarais et al., 2020) and, more importantly, that their use can be associated with reduced rates of pretrial detention (Lowder et al., 2020; Redcross et al., 2019; Viljoen et al., 2019).
Behavioral Health and Bail Reform
Through bail reform efforts and the urgency brought about by the COVID-19 pandemic, the number of people held in jail pretrial has gone down overall (Kang-Brown et al., 2021). However, in recent months, emerging data suggest the numbers are trending upwards again (Kang-Brown et al., 2021), and for people with behavioral health needs, they did not trend down much in the first place (APA, 2020; BSCC California, 2021). People with behavioral health needs are already overrepresented in the criminal legal system. This will likely worsen since COVID-19 has caused severe shortages in the availability of community-based behavioral health care (National Council for Behavioral Health, 2021; National Council for Mental Wellbeing, 2020).
Unfortunately, many of the strategies that are part of current bail reform efforts have not been designed or studied with explicit consideration of people with behavioral health needs. For example, court date reminders often consist of a single reminder several days prior to a court date, which may not be effective for a person managing severe mental health symptoms. As another example, people may be required to receive behavioral health services as part of their pretrial supervision, even though there is not much evidence to suggest that requiring service engagement helps decrease missed court dates or rearrest rates (Hatton & Smith, 2020). Finally, evidence indicates that judges sometimes deviate from pretrial risk assessment scores when the scores suggest release is appropriate (Stevenson, 2018b). This deviation may especially happen when judges perceive a lack of behavioral health resources available to support people in their community (Garrett et al., 2019).
So, Where Do We Go From Here?
Existing bail reform efforts must be reevaluated and altered as necessary, and any new efforts must explicitly consider behavioral health needs in the way they are designed. To be clear, considering behavioral health needs does not mean simply requiring people to engage with treatment services. Instead, it means ensuring that reform efforts will aid in keeping nearly all people out of jail during the pretrial period. Ultimately, successful bail reform efforts will keep people in their communities by making it easier for them to complete their court involvement, access behavioral health services if they choose to, and avoid further engagement with the criminal legal system.
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