Jailed without conviction: Behind bars for lack of money

Bail is the money needed to obtain release pretrial, as determined by a judge. The legal purpose for bail is to assure that a defendant will return to court.

Of those detained in jails in the United States, three-quarters face nonviolent charges, for drug, property, or petty offenses, says Ms. Baradaran, who chairs the American Bar Association's Pretrial Release Task Force. She and Rutgers Business School economist Frank McIntyre culled 15 years of felony data from the largest counties in the US. They found that only 1 to 2 percent of felons are rearrested for a violent crime before trial.

They concluded that there would be no increase in crime if courts released 25 percent more people without one bit of additional supervision, Baradaran says, noting that an even larger number could be released under expanded pretrial programs.

Mr. Austin, of the JFA Institute, a criminal-justice research organization in Washington, D.C., also questions the use of costly jail beds to hold large numbers of pretrial defendants because, in the 1980s, his research found that court supervision could improve outcomes of pretrial release programs.

The use of bonds has increased sharply in recent decades. Judges set money bonds in 53 percent of felony cases in 1990. By 2006, that figure had risen to 70 percent. The proportion of jailed pretrial defendants also rose during that time, presumably because release became unaffordable for many.

Bail-only release is not the only way

Last year, US Attorney General Eric Holder decried the proportion of jail inmates held pretrial on bonds beyond their means: "The reality is that it doesn't have to be this way.... Almost all of these individuals could be released and supervised in their communities ... without endangering their fellow citizens or fleeing from justice."

Mr. Holder and his colleagues have been proponents of "pretrial services programs." The appeal of the programs is that they can address both public safety and overdetention by moving away from the bail-only system.

Cliff Keenan, who runs the pretrial services program in Washington, D.C., states the position most succinctly: "Money should not control. Dangerous people get out of jail, and people who are not dangerous, but don't have the money, stay in jail."

Most large cities now have a pretrial services agency that interviews and screens defendants shortly after arrest, red-flagging anyone who poses a risk of fleeing or reoffending. But some pretrial services programs barely make a dent in pretrial detention, some because of ineffectiveness, others because of opposition by bail bondsmen coupled with reluctance of justice officials sensitive to looking weak on crime.

Typically, those who pose low or little risk are released on their own recognizance. Defendants who pose the most risk are held without bail or – often – given a very high bond, which judges hope defendants won't be able to pay.

Those arraigned who pose a moderate risk are released but monitored by pretrial services staff, through ankle bracelets, regular check-ins, or drug screens. A court-reminder program also calls defendants as their court dates approach, a method shown to reduce no-shows.

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