The trouble with bail — and some alternatives

Bail has a very clear purpose in the criminal justice system. It's a refundable deposit, designed to ensure that people who are charged with a crime show up for their day in court. That's all.

Yet bail can have some pretty perverse side effects, especially for the poor. If paying money is a precondition for getting out of jail, then those without money will often get stuck.

And across the country, local jails are full of people who have not been convicted of any crime; they're locked up simply because they can't cover their bail.

Massachusetts is hardly immune. When the research organization MassINC looked at statewide trends, it found that even though arrests have been decreasing across the state, more and more people are getting caught in pretrial detention — held in jail until their trials, not least because they can't afford bail.

How does bail work?

Not everyone who is arrested has to pay bail. Some defendants are released on their own recognizance. Others agree to a monitoring program, like regular check-ins with probation officers. And some are detained because they are considered too dangerous for release.

As recently as 1990, most felony defendants in the United States who were released from jail paid no bail, according to the Vera Institute of Justice. But that has changed. The most recent data, from 2009, show that 60 percent of the people who get out have to pay bail.

And then there are the people who can't pay and so must remain in jail. It's not a small group.

Three of every five people in local jails across the United States have been convicted of nothing, according to the same Vera Institute study. They are simply waiting for their trials, either ineligible for release or, far more commonly, unable to make bail.

What are the benefits of bail?

Used properly, bail can be a boon to liberty. Think of it as a minor monetary concession that gives defendants the opportunity to continue with their lives until their trial. A bail deposit is one way — though not the only way — for the state to release people who have been charged with a crime and be confident that they will return to face justice.

Making sure that bail is used properly, and not abused, is such a fundamental issue that it appears in the Eighth Amendment of the Bill of Rights, which not only precludes "cruel and unusual punishment" but also states that "Excessive bail shall not be required."

What are the problems with bail?

It presses harder on the poor, for one thing. A few thousand dollars can be a mere inconvenience to one defendant and an impossible burden for another.

Racial bias is another issue. As American University law professor Cynthia E. Jones found in her review of the evidence "nearly every study on the impact of race in bail determinations has concluded that African-Americans are subjected to pretrial detention at a higher rate and are subjected to higher bail amounts than are white arrestees with similar charges and similar criminal histories."

MassINC found a similar pattern in several Massachusetts counties, where black defendants are asked to pay substantially higher bail amounts than white defendants.

Perhaps most concerning, from the standpoint of justice, is that bail can be a form of coercion.

When bail and pretrial detention seem too costly, a quick plea can look like a path back to your old life. So if you can't afford bail, and you fear that remaining in jail until trial may cost you your job, or hurt your family, then a confession starts to look like the easiest way out — regardless of whether you are guilty.

This isn't some hypothetical concern. New York City looked into the numbers in 2012. Not only did researchers find a strong connection between pretrial jail time and the likelihood of conviction, they concluded that detention itself "creates enough pressure to increase guilty pleas."

What can be done to make bail work better?

States across the country are experimenting with different ways to improve the bail process.

One approach is to add evidence and rigor. Currently, judges and bail commissioners have a lot of latitude, which can lead to inconsistent rulings and allow for unconscious forms of racial bias.

MassINC, the Vera Institute, and other criminal justice reform groups have been pushing for better risk assessment tools, using questions proven to predict whether a given defendant is likely to skip out on court. Kentucky has embraced this approach, and so far it has dramatically reduced its reliance on bail while still keeping track of defendants.

A handful of states have gone further, eliminating bail entirely and relying on other forms of monitoring, like check-ins with probation officers or "unsecured bonds," which are like tailored fines for people who don't appear.

Should Massachusetts opt to pursue these kinds of reforms, it has one big advantage: a dearth of bail bondsmen. Elsewhere, those groups — which help defendants pay bail and then take a cut — make up a powerful lobby against change. But that business never took hold in the Bay State, which eliminates an often-daunting obstacle.