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Excerpted from: Muhammad B. Sardar, Give Me Liberty or Give Me. . .Alternatives? Ending Cash Bail and its Impact on Pretrial Incarceration, 84 Brooklyn Law Review 1421 (Summer, 2019) (Student Note) (269 Footnotes) (Full Document)


cashbailWhen police officers arrested seventeen-year-old Kalief Browder for allegedly stealing a backpack, they said, "We're just going to take you to the precinct. Most likely you will go home." But Kalief Browder never went home, and instead, spent the next three years of his life languishing in a Rikers Island prison cell. After police arrested Browder, a judge set his bail at $3,000, a fee that his family could not afford, and Browder spent years suffering in Rikers Island before the prosecution eventually dismissed his case. After three years of jail time and nearly two years of solitary confinement, Kalief Browder committed suicide at the age of twenty-two.

Unfortunately, Browder's case is not an anomaly, but a tragic example of the norm that is due in part to a cash bail system that disproportionally impacts minorities and the indigent. The United States has a prison population of over two million; nearly five hundred thousand more than China, the next highest country. Of this two million plus, around 540,000 people are pretrial detainees, or better put, these individuals have been arrested, but have not yet been convicted of a crime and are presumed to be innocent. Even though the prison population has steadily increased in the last fifteen years, the conviction rate has remained stable, exhibiting that the "[d]etention of the legally innocent has been consistently driving jail growth."

One of the main drivers of the growing rate of incarceration has been the cash bail system. Congress had envisioned the cash bail system for the primary purpose of reducing pretrial crime and flight, but the majority of pretrial detainees are charged with nonviolent offenses, where these risks are exceedingly low. Instead, the cash bail system has created a two-tiered system of injustice, akin to a modern-day debtor's prison, where the poor are imprisoned and the rich are released.

The resulting inequities stemming from money bail regimes have grave consequences for both the pretrial detainee and the public at large. Pretrial detainees have a tougher time mounting a defense and are much more likely to enter into guilty pleas and receive longer sentences than those who can afford bail. The detention itself places a long-term toll on the defendant's mental health, current and future employment prospects, and family well-being. From a societal perspective, these bail policies continue to strengthen the firm grip of institutional racism in the U.S. criminal justice system, with money bail disproportionately affecting minorities. Furthermore, the financial cost of money bail places an enormous burden on American taxpayers and state budgets. In 2018, for example, the Hamilton Project estimated that pretrial detention "cost[ ] taxpayers roughly $11.71 billion each year." States, in turn, have responded to these expenses by slashing funds to other programs, including higher education.

The inequities and costs of cash bail have not gone unnoticed, as states like New Jersey, Philadelphia, California, and New York have all taken steps to end or reform the cash bail system. As of 2018, California became the first state to statutorily eliminate money bail, but its risk assessment tool--a tool many jurisdictions use in lieu of cash bail--poses troubling consequences. Risk assessment tools are of questionable efficacy and their use can potentially perpetuate racial inequities. Other non-financial alternatives, like electronic monitoring, pose similar problems and ignore the fundamental presumption of innocence pretrial defendants should be afforded.

The inhumane system of cash bail should not be replaced with troubling alternatives. Although alternatives like California's risk assessment tools and electronic monitoring are steps in the right direction, these alternatives still pose some of the same problems associated with cash bail. One example of an alternative procedure that has solved some of these problems is Washington, D.C.'s pretrial system, where cash bail has essentially been eliminated and replaced. D.C.'s success can be traced to its strong presumption towards release, procedural protections for pretrial defendants, and more humane pretrial services. This system, however successful, still imposes some onerous pretrial restrictions and employs a risk assessment tool that utilizes racially biased socioeconomic inputs.

State legislatures should take the successful framework of Washington, D.C.'s pretrial system one step further by releasing misdemeanor defendants on personal recognizance and providing greater procedural protections for felony defendants. The efforts of community bail funds across America have shown that a vast majority of defendants will return to court if adequately notified, exemplifying that pretrial restrictions are unnecessary punitive measures. By releasing all misdemeanor pretrial defendants and ensuring adequate procedural protections for felony defendants, states can restore some semblance of humanity to our criminal justice system.

This note proceeds in the following four parts.

Part I presents a brief history of cash bail and an overview of current pretrial practices.

Part II addresses the importance of eliminating cash bail by showing the disastrous effects that the system can have on individuals, indigent and minority defendants, and the U.S. economy.

Part III discusses two of the more popular alternatives to cash bail--risk assessments and electronic monitoring--and illustrates that these two alternatives pose equally troubling consequences as that of cash bail.

Part IV offers the solution to ending cash bail: state legislatures should adopt bail reform laws that release misdemeanor pretrial defendants and restore adequate procedural protections for felony defendants.


In Salerno, Justice Rehnquist stated that "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Cash bail has distorted any sense of liberty and detention prior to trial has become more than just a limited exception. Pretrial detention has wreaked havoc on the lives of countless pretrial defendants, taking special aim at indigent and minority defendants. But this does not have to be the case. States have recognized that cash bail cannot be the foundation of a just criminal justice system. But states will have a long way to go if they continue to rely on alternatives that perpetuate the same sins of the cash bail system they seek to replace. Instead, state legislatures should pass bail reform laws that release misdemeanor defendants and ensure adequate procedural protection for felony defendants. The presumption of innocence should not be disregarded as a worthless platitude, but instead should be intrinsic to the idea of ordered liberty. By releasing misdemeanor defendants and providing adequate procedural safeguards for felony defendants, we can ensure that there is liberty, untouched by fear.

J.D. Candidate, Brooklyn Law School, 2020; B.S. Northeastern University, 2017.