Cash Bail and Pre-Trial Detention

It is widely accepted that we have a two-tiered system of criminal justice in America: one is reserved for people with financial means and the other is for everyone else—the effects of which are mostly felt by poor people and Black, Indigenous, and People of Color. One of the most obvious examples of this is the cash bail system that detains people for lengthy periods of time before they are proven guilty.

Cash Bail System:

“The purpose of bail originally was to ensure that people who needed to show up for court wouldn’t run off or to ensure that people who were a danger to the community, a physical danger to the community, could not be released back into the community to cause people harm,” said SK Rossi, the Director of Advocacy and Policy at the ACLU of Montana.

Judges are supposed to give every person an individualized bail hearing to assess whether they need to be held pre-trial. This rarely happens.

“We have expanded the criminal justice system so much that judges don’t have the time or the energy to give every single person a meaningful individualized bail hearing,” Rossi said. “There are so many people being held pre-trial because of the number of criminal laws we have on the books … our criminal justice system is just bloated with people who should not be in jail in the first place.”

People who are held on bail are legally innocent because their cases have not concluded yet. The timeframe can range from days to months to years before they are sentenced or released.

“If you’re unable to pay, you’re going to sit in your jail cell pre-trial before you’ve been convicted until either you can pay your bail, you plead guilty, or your trial is concluded,” Rossi said. “And if you want to go to trial, you’re usually looking at sitting in jail for, on average in Montana, about seven months without conviction because you can’t afford your bail.”

In many cases, when a defendant is faced with sitting in jail for the seven months that Rossi mentioned or pleading guilty to something they did not do in order to be released, the latter is often the more appealing option.

“They know that if they plea guilty and that gets them time served when they’ve already been in jail for a couple months, or it gets them no jail time at all, and they just get probation, they know they’ll get out quicker,” Rossi said.

And for those who choose to maintain their innocence and wait in jail for their day in court, the emotional toll can be devastating. This was the case for Kalief Browder.

Kalief Browder

In 2010, when he was only 16-years-old, Browder was arrested for robbery. There was no evidence that Browder did it, and he had no prior convictions. Regardless, he was booked at Rikers Island, and bail was set at $10,000. Unable to pay his bail and even after the state offered him a deal of time served if he pleaded guilty, Browder maintained his innocence.

After three years passed, the state eventually dismissed the charges. Browder was released, but his mental health was severely impacted by his time at Rikers Island. Not only was he incarcerated for some of the most important years of his life, but he spent about two of the three years in solitary confinement and endured horrendous treatment, including being starved and denied mental health assistance. Browder died by suicide in 2015.

Watch Browder tell his story to Huff Post Live:

Pre-Trial Detention:

As made evident by Browder’s story, the implications of being detained before your case has concluded reach beyond economic hardships. According to a 2014 report titled “Presumption of Guilt: The Global Overuse of Pretrial Detention, conditions in pre-trial detention centers—where most inmates are still legally innocent—are “particularly deplorable.”

“Places of imprisonment are tense and overcrowded facilities in which all prisoners struggle to maintain their self-respect and emotional equilibrium despite violence, exploitation, extortion, and lack of privacy,” the report states. “Prisoners face stark limitations on family and community contacts, and typically have few opportunities for meaningful education, work, or other productive activities.”

Minoritized people disproportionately experience these conditions. According to the report, pre-trial detention rates for Indigenous people are a global phenomenon. And in America specifically, Black youth are twice as likely to be held pre-trial than any other group.

“This is so for a number of reasons, ranging from blatant discrimination and xenophobia to the more subtle consequences of minority or non-citizen status,” according to the report.

Pre-trial detention rates also unjustly impact those accused of low-level offenses like drug possession, traffic violations, and public drunkenness, according to the report. In New Orleans, for example, almost 3,000 people incarcerated in local jails are accused of these types of non-violent offenses.

Additionally, in some cases where low-level offenses are charged, evidence suggests that prison sentences are imposed for the purpose of justifying the excessive pre-trial detention.

“Imprisonment appears at least in some times and places to be used in order to ‘cover’ pretrial detention: that is, pretrial detention is retrospectively justified by imposing a prison sentence,” the report states.

How do pre-trial detention and cash bail impact Montanans?

We spoke with David Herbst, the State Director of Americans for Prosperity Montana, about the impacts of cash bail and pre-trial detention in Montana and the possible solutions. Listen to our interview below:

How does the cash bail system result in the incarceration of innocent people?

Does cash bail impact BIPOC more?

How does the cash bail system promote systemic racism?

What is the broader impact of the cash bail system?

How can we reform cash bail?