Less Bail Means Less Jail

If you had guess what most people in the American jail system had been convicted of, what crime would you pick? Robbery? Driving while intoxicated? Loitering? The correct answer is “nothing”, and that’s why the historic drop in the U.S. crime rate hasn’t been coupled with an equally massive decline in the jail incarceration rate.

Jails don’t just hold inmates who have been convicted of crimes. They also hold people like the late Kalief Browder who are accused of crimes but have yet to be tried in court. Bureau of Justice Statistics data shows that the U.S. jail population is increasingly composed of such people, who may not be guilty of anything.


The report notes that from 2000 to 2014, “95% of the growth in the overall jail inmate population (123,500) was due to the increase in the unconvicted population (117,700 inmates).” The U.S. population increased by almost 35 million people over this period, meaning that the essentially flat number of convicted inmates would represent a sizable fall in the jail incarceration rate if it hadn’t been largely cancelled out by the surge in unconvicted inmates.

Why are so many more non-convicted people in jail now than in the past? Vera Institute highlights the role of bail conditions. During the era when the crime rate was much higher, judges became increasingly less willing to release defendants on their own recognizance. By 2009, 61% of felony cases attached financial conditions to pre-trial release, a 50% increase from 1990.

Finding the money to put up a bail is a challenge for lower-income arrestees (i.e., most arrestees): the “choice” between making bail and sitting in jail is often not really a choice at all. Because low-income people increasingly stay behind bars waiting for their day in court, the collapse in the crime rate hasn’t translated into a comparable decline in the human and economic costs of America’s jails.

Political leadership for a policy of “less bail means less jail” could ameliorate this problem. As a policy proposal, “less bail” has two components.

First, more people accused of crimes should be released on their own recognizance, just as they were a generation ago. An innovative experiment known as the Manhattan Bail Project showed that far more people than is commonly believed will appear at their trial even with no bail conditions. Specifically, the study released 3,505 people without bail and found that only 1.6% did not appear at trial for reasons under their control.

Second, when bail conditions are imposed, the financial amounts should be reduced. The Vera Institute notes that bail amounts have grown faster than inflation, putting them out of reach of many low income people. Psychological research indicates that human beings are loss averse, meaning that any financial loss carries significant weight in decision making independent of its size. Practically, this means the risk of losing $300 for not appearing at trial can have as much deterrent effect as the risk of losing $500 or $1000. Judges will have to experiment to find the “sweet spot”, but the odds are very good that it is substantially lower than the amounts commonly imposed today.

Reducing how often bail is imposed on arrestees and how much it costs when it is imposed would have multiple benefits. First, fewer arrested individuals, who it has to be remembered could be completely innocent, will suffer the degradation and pain of incarceration and its radiating damage to family and employment prospects. Second, jails would be less crowded, making them safer both for inmates for the staff who work in them. Third, public sector budgets that are straining to keep so many unconvicted people in jail would gain some much needed relief.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College Lonon. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over ten thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

20 thoughts on “Less Bail Means Less Jail”

  1. An alternative to no bail, would be actual speedy trials. Something we ought to do even if jails weren't crowded.

    1. Why is this an alternative to less bail, rather than something that should be done in addition to it? And, as always when you post something like this, I'll be more convinced of your honesty if you would couple it with some sort of admission that this would require more spending and, thus, taxes.

      1. I'm a bit unclear why this would require more spending. Presumably it takes about the same amount of money to do everything from arrest to trial, regardless of whether you spread it out over three weeks, or over three years. X number of man hours of work, regardless of whether it gets done in dribs and drabs over a long period, or all in one swift effort. Except that, in the latter case, you're paying to keep somebody in jail for three years, too. If anything, speedy trials should save money.

        The real problem here is that the process IS the punishment, before and during the trial, and regardless of whether you get acquitted. Longer process, longer punishment.

        I'll tell you what I am in favor of, which would cost real money: Make defendants whole if they aren't convicted. Compensate them for their time and the damage the system did to them.

        And here's my really radical proposal: Let the jury come back with a verdict of "The prosecutor shouldn't have brought these charges", and if a prosecutor gets that verdict more than rarely, strip him of his office.

        1. it seems as if you don't understand that the main reason these things take so long is the chronically underfunded judiciary in most states as well as the criminally underfunded and understaffed public defender offices. the system isn't slow because the participants choose to be slow it's because there literally aren't enough people to do the various tasks on anything other than snail's pace. adequately funding the justice system so that fair trials can be carried out in a timely fashion would cost quite a bit more than the present system, even factoring in the costs of incarceration. although many of the costs of incarceration which were formerly paid for by the state or local government are now borne by the defendants and their families.

          1. Look, if there's more work than the available manpower can do, doing it slowly isn't going to help. They'd fall further behind with every new case. Doing ten jobs at the same time is considerably slower than doing ten jobs to completion in sequence.

            Standard principle of computer science, as a matter of fact. If you multi-task, you can end up spending most of your processor time switching between tasks, and end up with very little time available for actually doing them. It's called "process thrashing".

            Maybe the justice system is process thrashing.

            Of course, the real answer is fewer cases. End the war on drugs, and a lot of even the non-drug offenses would go away.

          2. so instead of learning something, you're just going to double down on your lack of understanding of reality. not that is disagree with you about the war on drugs but really you are often willfully obtuse when you want to be.

          3. I love the way you describe not agreeing with you as "doubling down". I've been working for 35 years in the stamping industry, and we only switch back and forth between jobs when forced to, because we know quite well it's less efficient. That's widely understood in the private sector. Thrashing isn't just a concept in computer science.

            How about considering the possibility that our legal system is badly run? That they're not doing the best they can with limited resources, (EVERYBODY'S resources are limited.) but instead screwing up with limited resources?

            And, yes, I think the main solution is reducing the work load by legalizing drugs, so we won't have a huge black market funding urban gangs.

            That aside, no comment at all on the idea of actually trying to make the acquitted whole? Generally happy with the ability of prosecutors to punish people regardless of whether they can convict?

          4. Do you support hiring enough public defenders that they are able to each work on only one case at a time?

          5. Did you read what I said? Because your question makes no sense at all in light of my position. If there are enough public defenders to handle the present workload when scheduled inefficiently, there are enough of them to handle it if scheduled efficiently. It makes absolutely no since to ask me to support hiring enough public defenders so that they can do the work efficiently scheduled, instead of inefficiently.

            Doing a job piecemeal while switching back and forth between ten other jobs is less efficient than seeing one through to completion, and then moving onto the next. It doesn't take more people to do the same work more efficiently scheduled.

            I think the present scheduling may be due to an inability to appreciate this, but it also might be because the system views everybody arrested as obviously guilty, and likes using the process to get some early punishment in.

  2. What role, if any, is played by the bail-bond sector? Paying for a bond means guaranteed (smaller) loss, but potentially allows judges to rationalize setting bailing much higher.

    1. High bail is a large subsidy to the bondsmen. Has some investigative journalist looked at the relationships between bondsmen, judges, and prosecutors? The prosecutors generally oppose bail, but that may be a ploy to secure high bail. Look at the way title insurance companies have IIRC opposed efficient Torrens-title land registries in a good number of US states.

  3. The ratio is grotesque. A possible slogan: "Jail is for convicts."

    Tufte, who dislikes all pie charts, would especially not like these. They conceal the large increase in the total. Since there are only four quantities, in two formats (number and percentage), a table does the job perfectly well. I have had a go at a bar chart. Sorry about the lousy resolution; click for better.

    1. Nice chart, though I like mine because my point is the ratio, not the total about which much has already been written.

      1. Genuine question. Is there any evidence that the human visual system judges relative radians any better than relative heights? My intuition says not. The exercise of visual estimation is rather too easy for both charts – we can quickly conclude that the unconvicted are around a third more numerous than the convicted (in fact it's almost exactly a third: 33.64%).

    2. The format of your chart is fine, but you have almost everything mislabeled. Keith is talking about the population of jail inmates, not prison inmates, and your four columns are, successively: Convicted 2000; Convicted 2014; Non-convicted 2000; Non-convicted 2014. It is the non-convicted population that is almost identical across time, not that the population in 2000 was balanced evenly between the two types of inmates.

      1. The column mislabelling was fixed quickly, but not I see fast enough for the Doc Holliday reaction time of the RBC commentariat. Mess with it if you dare.

        I had forgotten that in American usage jail and prison refer to distinct institutions. In the UK, sane adults are locked up either in a police station or a prison, and jail is just an informal term for the latter. (There is a whole complex carceral penumbra for young offenders and the criminally insane, with terminology I don’t follow.) I feel that correcting the chart, in a mere comment, would create more confusion than it would remove.

  4. I don't see the relevance of the distinction between jails and prisons for the purpose of this discussion, or to put it another way, I don't see why the relevant statistic is the percentage of the jail population that has not been convicted of a crime, rather than the percentage of the incarcerated population that has not been convicted of a crime.

    That said, in 2000, 17.4% of the incarcerated population had not been convicted of a crime. I don't have prison numbers for 2014, but assuming that the number is similar to the 2013 number, about 20% of the incarcerated population in 2014 had not been convicted of a crime. So we are seeing an increase under either set of statistics.

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