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No Cash Bail Policies: Vantage Points for Evaluation

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Linda-Marie Sundstrom, Jim Bishop & Mark Kling
December 9, 2022

In 2021, Illinois passed a No Cash Bail law covering the entire state. This law will go into effect in January 2023. Other areas, such as New York, have passed similar legislation on a local level, but Illinois is the first to pass the law at the state level. Their law contains a number of different measures including policing reforms, prison and sentencing reforms, along with cash bail reforms. Citizens across the country are trying to determine if these No Cash Bail laws are good or bad for their regions. But the answer may not be that straightforward…The answer to this question may depend on a person’s Vantage Point in making that assessment.

What is Cash Bail?

Cash bail is used by most court systems to assure that the person accused of a crime (the defendant) appears in court at all future court appearance dates. In many cases, defendants who have been arrested for an alleged crime are held in jail until the time of their trial, unless they are able to post the amount of bail associated with the charge. If the accused does not have sufficient cash resources for the bail (or property to provide as security), they will remain in jail pending trial. A No Cash Bail policy prohibits requiring bail as a condition of release from jail prior to the defendant’s court date, except in the cases of the most serious crimes. In other words, if a person is arrested, they must be released without any financial commitment as security to assure their court appearances.

Vantage Point: Equity & Fairness

If we view traditional bail policies through the lens of equity and fairness, we find that defendants who have been accused of committing similar crimes may be treated differently based on their ability, or inability, to secure the funds for bail or a bail bond. Some refer to this as a “penalty on poverty” because defendants without cash or assets to use to post bail will stay in jail to await trial, while those defendants who have the ability to secure cash or assets can “pay their way” to pre-trial release. With the current backlog in the criminal justice system, the time from arrest to trial can be 6-36 months in some jurisdictions. Defendants who remain in jail awaiting trial are unable to work or provide for their families and are also a financial burden on the government. The No Cash Bail policies provide a more equitable and fair treatment for defendants regardless of their economic status.  

Vantage Point: Crime Reduction

If the No Cash Bail policies are viewed through the lens of crime reduction, we find that defendants who are released without bail have a higher likelihood of reoffending and failing to appear for their trials.  During a recent press conference, New York’s Mayor Eric Adams said, “Time and time again, our police officers make an arrest, and then the person who is arrested for assault, felonious assaults, robberies and gun possessions, they’re finding themselves back on the street within days– if not hours — after the arrest. . . As a result of this insane, broken system, our recidivism rates have skyrocketed.”  As an example, in New York City, 10 individuals have been arrested nearly 500 times since the passage of their No Cash Bail policy. 

  • One person has been arrested and released 88 times since the reform was passed.
  • One defendant, with 33 arrests since the bail reform passed, is now free (without bail) pending sentencing for multiple violent felony pleas.
  • Another accused offender has been arrested and released 55 times since 2020.

According to the NYPD, arrests for robbery, burglary and larceny jumped 25.9 percent in 2022 compared to 2019 (prior to No Cash Bail reforms). As of July 5, 2022, 25.1 percent of burglary defendants were arrested again within 60 days and charged with a felony. In all this data, it is easy to lose sight of the victims who suffer the impacts of these crimes.

Vantage Point: Evaluations

When formulating an initial evaluation from a limited vantage point, expectation bias can taint objectivity. We attempt to only assess the impacts on the part of the problem in which we are most invested.  Similarly, outcome bias can also skew our interpretation of the policy results. If a solution addresses our issue, we can be tempted not to consider undesirable side effects in other areas. In the No Cash Bail example, if we focus on correcting the “penalty on poverty” issue we might not take into account the corresponding impacts on crime rates when evaluating policy success—and vice versa. Going forward, when defining problems, formulating solutions and (especially) evaluating policy outcomes, we should be cautious to not artificially narrow our vantage point based on a single outcome. When dealing with public policy and societal issues, we should be diligent to look at all vantage points and examine the complete picture (including both intended and possible unintended outcomes).  This will enable us to bring about much needed reforms to provide fairness and equity for those accused, justice for victims, and protection for citizens. 

Author: Dr. Linda-Marie Sundstrom is a former Fulbright Scholar who taught Public Administration in Ukraine at a university under the Office of the Ukrainian President.  She worked for 20 years in local government and has taught in Master of Public Administration Programs for nearly two decades.  She is currently the MPA Program Director for California Baptist University in Southern California. Email: [email protected].

Author: Professor Jim Bishop has been teaching law for the past 42 years and is currently a faculty member at California Baptist University’s Criminal Justice Department.  He has been a licensed attorney in the State of California since 1975 and practiced law for 15 years, before becoming a judicial officer for Riverside County Superior Court, primarily serving on a Criminal Calendar. Email: [email protected].

Author: Dr. Mark Kling has been in law enforcement for 34 years, 13 as police chief. He has taught both Public Administration and Criminal Justice courses for the past 20 years. He is currently the Criminal Justice Program Director for California Baptist University and came out of retirement to transition the Rialto Police Department to new innovative executive leadership. Email: [email protected] / [email protected].

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