When you’re arrested for a crime, it seems like the most pressing issue is whether you will be convicted. In many cases, however, it’s just as important to focus on getting released from jail before your trial. Not only can high cash bail trap people behind bars for months, but it also affects your chances of conviction and is likely to lengthen your sentence if you are.
This is according to a new report by the nonprofit Vera Institute of Justice. That report found that pretrial detention comes down especially harshly on more marginalized communities like women, the poor and minorities.
“People who cannot afford to post bail—in particular, people from poor communities—remain in jail, often until their cases are resolved, while those who have access to financial resources are able to secure their liberty,” say the authors of the report.
That can mean immediate consequences for people who haven’t been convicted of any crime. Spending the months before a trial in detention typically means you’ll lose your job, your housing and possibly custody over your kids.
What’s more surprising is the longer-term consequences of pretrial detention. The longer you’re detained, the more likely you are to be convicted — and the harsher your likely sentence. Even worse, these longer-term consequences make you more likely to reenter the justice system after your ultimate release.
It’s not entirely clear why being held pretrial increases your chance of conviction and lengthens your sentence, but Vera has some theories. One is that people who are being held in detention lack full access to their attorneys and are therefore less able to collaborate in their defense.
Another is that people who can’t afford to pay bail are less likely to be able to afford the money-based “good behavior” measures that often convince judges to reduce sentences or even result in acquittal. These often include volunteering, community service, seeking mental health or drug treatment, paying restitution or getting a job or additional education.
What we know for sure is that women and people of color are less likely to be able to afford the bail that is set for them. Moreover, research indicates that bail is actually higher for people of color.
Pretrial detention has skyrocketed in the past few decades
Bail and pretrial detention are meant for two primary purposes: Preventing the defendant’s flight and protecting the community. High bail or denied bail are meant to keep obviously dangerous people behind bars and ensure that defendants return for their court dates.
In the past, the law required people to be released under the least restrictive conditions that would ensure they returned to court. In the 70s and 80s, public opinion changed and both state and federal laws were adopted that allowed people to be detained if they were assessed to be a flight risk or a danger to the community.
However, the Supreme Court made clear that pretrial detention was to be a “carefully limited exception” to the presumption that people should be released while awaiting trial.
It’s not a carefully limited exception. Between 1970 and 2015, pretrial detention exploded by 433%.
There’s also a good deal of evidence that pretrial detention doesn’t actually do more to ensure defendants return for their court dates than a simple reminder would.
Our bail system is not fair, and its unfairness sticks with defendants to increase the probability of conviction and harshens their sentences. It’s crucial, therefore, that you fight for affordable bail. If you have been arrested, get an experienced criminal defense attorney involved as soon as possible in your case.