What Is Bail Reform?

Bail reform efforts are trying to shift the focus on how bail and pretrial release decisions are made. Access to money tends to be the primary factor in determining who stays in jail and who goes free pending trial. Those behind bail reform want these decisions to be based, instead, on a defendant's risk of flight and risk to public safety.

This article reviews bail reform efforts, why proponents argue it's needed, what critics say, and how state bail reform efforts have fared.

Understanding Bail and Bail Reform

Bail is a tool used to balance competing interests within our criminal justice system—the presumption of innocence, fairness, accountability, and public safety. But does it work? And does it work fairly?

Let's Talk Jail

To start, the numbers surrounding bail and jail are huge. Millions of people cycle in and out of jail in the United States. Jails process around 7.5 million people every year. These local and county jails hold pretrial detainees (those awaiting trial), as well as convicted defendants (some serving their sentence or awaiting sentencing or revocation hearings). While jail populations fluctuate constantly, on average, the daily population has ranged (in the last decade) between 600,000 and 750,000 confined inmates. Around 70% of the daily jail population are those awaiting trial.

Let's Talk Bail

Most states still use bail and bail bonds as primary mechanisms for pretrial release. Having money is, by far, the fastest way to get out of jail. Many places have "bail schedules" that set a bail amount for the offense charged. The more serious the charges are, the higher the scheduled bail will be. Bail schedules are used to release people after an arrest but before going to a judge.

Say you and a friend are both arrested on burglary charges. The police inform you the bail schedule amount for burglary is $15,000—pay up and you can go home. Your friend has wealthy relatives, but you don't. He quickly posts $15,000 bail and gets released. You don't have $15,000 lying around, so you sit in jail for the next two days and miss work. At your bail hearing, the judge defers to the bail schedule amount of $15,000, refusing to reduce it. It takes you two more days to get a bond and arrange your release. You've now missed four days of work and are out $1,500 at a minimum. (Most bond agents charge a nonrefundable 10% fee.) Meanwhile, your friend has been home this entire time, found a criminal defense attorney, and won't be out any bail money as long as he shows up in court on time.

Let's Talk Bail Reform

Bail reform proponents want to eliminate the disparity between rich and poor when it comes to pretrial release. Instead of wealth (or access to money) being the deciding factor, they want the system to focus on maintaining public safety and ensuring people show up in court. But, to do this, the system needs to assess risk factors for each defendant. These risk evaluations and supervision efforts take time, resources, and buy in from those in the criminal justice system—which has proven difficult for many jurisdictions.

Bail Reform Efforts in the United States

Bail reform efforts vary from one state to the next (sometimes one city to the next). They can range from policy changes that encourage risk assessments and nonmonetary conditions of pretrial release to laws that end the use of cash bail. So far, only Illinois has managed to abolish cash bail. Most states working on bail reform are evaluating or implementing changes that stop short of eliminating cash bail.

Examples of bail reform policies include:

• restricting or prohibiting the use of money bail in misdemeanor cases
• starting with a presumption of release without bail for misdemeanor and non-violent felony charges
• requiring judges to consider a person's financial resources or ability to pay when setting bail amounts
• establishing pretrial assessments that evaluate a defendant's flight and safety risk
• implementing bail review hearings when a defendant remains in jail due solely to inability to pay, and
• increasing the availability (and affordability) of nonmonetary release options, such as community supervision, home detention, or electronic monitoring.

Many of these pretrial services and policy changes require funding (lots of funding), which has also made reform efforts difficult in some states. These reforms also require buy in and cooperation from judges and other criminal justice stakeholders. Legislators can make changes to the law, but implementation occurs in the jails and courthouses.

States That Have Passed Bail Reforms

Several states have implemented bail reforms. Some have been successful; others have not. Illinois and New Jersey provide good examples of where reducing or eliminating reliance on cash bail has worked well. New York's reforms, on the other hand, have struggled and continue to receive pushback. Alaska and California were among the recent wave of bail-reform trailblazers, but both have rolled back their major reforms. (Check out bail reform efforts in additional states here.)

Illinois Ended Cash Bail

Illinois passed its bail reforms in 2021. The law was set to start in January 2023, but a lawsuit delayed its implementation. After surviving a constitutional challenge, the law went into effect in September 2023, making Illinois the first state to abolish cash bail.

Under the new laws, most persons charged with offenses in Illinois will be eligible for pretrial release on their own recognizance (a promise to appear), subject to any conditions the judge decides are appropriate (such as home detention or supervision). The law also allows pretrial detention of defendants charged with certain offenses when the court determines they represent a danger to the victim or community.

(725 Ill. Comp. Stat. §§ 5/110-1.5, 5/110-2, 5/110-6.1 (2024).)

New Jersey Bail Reform Focuses on Safety

New Jersey's bail reforms went into effect in 2017 and have been largely viewed as successful. While the state did not eliminate cash bail in its entirety, the result of shifting to risk-based release decisions ultimately pushed the system in that direction.

New Jersey judges make pretrial release decisions based on a defendant's flight risk and risk of committing another crime. Low-risk defendants are typically released on recognizance (promise to appear). Moderate-risk defendants will be released with conditions and monitored (bail might be a condition). High-risk defendants are detained pending trial. New Jersey invested heavily in pretrial services to make the system work. The law also imposes harsh penalties for committing a new crime or fleeing while on release.

New York's Bail Reforms Face Pushback

In 2019, New York ended the use of money bail for most misdemeanor and low-level felony charges. Facing pushback ever since these changes were made, lawmakers later carved out several exceptions that allow judges to order bail for these lower-level charges. Examples of these carveouts include imposing bail for defendants considered persistent offenders or who commit crimes while on release. Bail reform efforts continue to be highly criticized in New York.

Bail Reform Rollbacks in Alaska and California

Alaska had been one of the leaders of bail reform, overhauling its entire pretrial detention process in 2016. But legislators rolled back the changes by 2019, prompted by spikes in crime rates.

California, likewise, made early reforms. Legislators passed a bill in 2018 to eliminate money bail. But, the law never went into effect. A veto referendum was filed immediately and voters repealed the law.

Pros and Cons of Bail Reform

The bail system has existed for centuries, and change does not come easy in such a deeply rooted structure. Entire industries have been built around the current structure. So why make changes now?

Arguments for Bail Reform

Proponents of bail reform argue that bail is a wealth-based system. It not only punishes poverty but also allows wealthy dangerous defendants to go free, perpetuating racial discrimination and undermining the purpose of bail. All criminal defendants are presumed innocent. Basing pretrial release decisions on risk of flight and dangerousness is a fairer system that keeps communities safer.

Arguments Against Bail Reform

Opponents of bail reform argue that it increases crime by releasing more criminals to the street. It ties the hands of judges and forces them to release dangerous offenders. States have not adequately funded pretrial supervision (a key component of bail reform), which places communities at risk. The risk assessments that are meant to reduce racial and poverty discrimination are inherently biased and only exacerbate these issues. Bail should not be considered a way to keep people in jail, but rather, another option to remain free pending trial.