NY TIMES: Unable to Post Bail? You Will Pay for That for Many Years

T.M. Detwiler

Cash bail favors the rich, who can pay it and go home, while poorer people are frequently forced to remain in jail while they await trial.

That fact alone helps to explain why cash bail has been eliminated or restricted in California, New Jersey and Arizona, and appears to be on the way out in a number of other places, including New York.

But two new studies in economic journals show that inequities in the cash-bail system lead to more long-lasting and pernicious consequences.

In itself, an inability to pay bail after being arrested makes it more likely that you will be convicted of that offense, according to a study published last year in the American Economic Review. The study found that being held in jail while awaiting trial also makes it more likely that, two to four years after an initial arrest, you will be engaged in criminal behavior or unemployed.

A separate study in the Quarterly Journal of Economics showed that while the cash-bail system penalizes poor people, it also discriminates against African-Americans, who tend to be treated more severely than white people by judges who set bail, regardless of the judge’s race.

Two scholars — Will Dobbie, an economist at Princeton, and Crystal Yang, a law professor and economist at Harvard — were co-authors of both studies. Jacob Goldin, a law professor and economist at Stanford, was also a co-author of the first study, “The Effects of Pretrial Detention on Conviction, Future Crime and Employment: Evidence from Randomly Assigned Judges.” David Arnold, a graduate student in economics at Princeton, was a co-author of the second, “Racial Bias in Bail Decisions.”

Both studies analyzed the bail system in two counties, Miami-Dade in Florida and Philadelphia in Pennsylvania. By subjecting judicial bail-setting decisions to statistical analysis, the first study found that some judges tended to be stricter in their bail rulings, and some more lenient. Which judge a defendant was assigned to was, for the most part, a matter of luck.

In most court cases, judges, whether lenient or strict, made the same decision as their peers, the study found. All of them set bail high for violent felonies, for example. But in about one-seventh of the cases, whether the defendant ended up detained or released hinged on which judge made the bail determination. Zeroing in on this group of “close-call” cases — in which the leniency of the judge was the decisive factor — enabled the researchers to go a long way in establishing causation in the effects of cash bail on a person’s future.

Consider two defendants with similar backgrounds who were accused of a nonviolent property crime or misdemeanor. By the luck of the draw, one faced a lenient judge and was released, and the other got a different judge who set an unaffordable bail amount. Such an unlucky defendant was detained until trial, typically for about two weeks, the study found.

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Unable to Post Bail? You Will Pay for That for Many Years
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Unable to Post Bail? You Will Pay for That for Many Years
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Cash bail favors the rich, who can pay it and go home, while poorer people are frequently forced to remain in jail while they await trial.