Bail reform has been a major topic recently, with proponents arguing that financial resources should never determine whether someone awaits trial in or out of jail. The American Civil Liberties Union (ACLU) of Washington offers a detailed review of how pretrial imprisonment affects defendants, both in terms of case outcomes and other negative impacts on their lives.
Awaiting trial in jail often creates an uneven playing field, as defendants are less able to assist in planning their defense, less likely to go to trial, more likely to be convicted, and more likely to receive a harsher sentence if convicted.
By law, anyone facing criminal charges should be able to help prepare their defense in a meaningful way. Those who are jailed prior to trial are less able to do this, as meeting with their attorneys to discuss the case and review evidence is more difficult. As a result, these defendants tend to be more disadvantaged in their defense than those who have been bailed out.
The Constitution guarantees all individuals the right to a trial, but those who are not able to make bail are less likely to get one. Especially for those with minor criminal charges, regaining freedom tends to be the primary focus. Rather than spend months in jail awaiting trial, arrestees often choose to accept a plea agreement. This means that individuals who may not have been convicted at trial — including those who are truly innocent — sometimes still end up with convictions.
Studies have shown that defendants who are jailed prior to trial are more likely to be convicted. For example, during its audit of Galveston County, the Texas Indigent Defense Commision found that misdemeanour defendants who are bailed out prior to trial are “six times likelier to have their charges fully dismissed.”
Higher conviction rates are probably due partly to defendants’ hindered ability to prepare their defense and partly to their increased likelihood of pleading guilty, although other factors may be at play.
The ACLU of Washington cites a study that “shows that people jailed before their trial receive sentences that are almost five months longer than those who are not jailed before trial.” Similarly, the same Galveston County audit mentioned above found that a felony defendant who can’t meet bail is “four times likelier to be sentenced to more than a year in prison, and is half as likely to be sentenced to probation or deferred adjudication.”
Prosecutors and judges are more liable to promote shorter sentences for those who have demonstrated good behavior in the community and participated in treatment or services prior to trial. Those who are jailed before trial don’t have the opportunity to do this.
Pretrial jailing also negatively affects defendants’ finances, families, and health.
Pretrial detainment can cause a variety of financial problems, including:
Pretrial detention can cause a variety of family issues, particularly if the defendant has children. For instance, parents may lose custody if they are unable to find caregivers. In some cases, the partner or children may need to take on new responsibilities, including providing domestic, emotional, or financial support. The stress of all of this may put strains on the marriage itself.
County jails tend to have limited and insufficient health services, if they have any at all. Defendants awaiting trial may not have access to their medications, or may have to wait days to weeks to receive them. And jails are often negative environments for those with mental illness, as they lack access to education, physical activity, and specialized care.
Suicide is also a risk for those who are detained prior to trial. Defendants awaiting trial in jail commit suicide as much as nine to 14 times more often than the general population, and account for 75 percent of all suicides that occur in custody.
When arrestees can’t meet cash bail, bail bonds give them more options to await trial at home with their loved ones — and avoid all the negative effects of pretrial imprisonment.
Worse Case Outcomes
Awaiting trial in jail often creates an uneven playing field, as defendants are less able to assist in planning their defense, less likely to go to trial, more likely to be convicted, and more likely to receive a harsher sentence if convicted.
Obstacles to Defense Planning
By law, anyone facing criminal charges should be able to help prepare their defense in a meaningful way. Those who are jailed prior to trial are less able to do this, as meeting with their attorneys to discuss the case and review evidence is more difficult. As a result, these defendants tend to be more disadvantaged in their defense than those who have been bailed out.
Decreased Likelihood of Going to Trial
The Constitution guarantees all individuals the right to a trial, but those who are not able to make bail are less likely to get one. Especially for those with minor criminal charges, regaining freedom tends to be the primary focus. Rather than spend months in jail awaiting trial, arrestees often choose to accept a plea agreement. This means that individuals who may not have been convicted at trial — including those who are truly innocent — sometimes still end up with convictions.
Higher Likelihood of Conviction
Studies have shown that defendants who are jailed prior to trial are more likely to be convicted. For example, during its audit of Galveston County, the Texas Indigent Defense Commision found that misdemeanour defendants who are bailed out prior to trial are “six times likelier to have their charges fully dismissed.”
Higher conviction rates are probably due partly to defendants’ hindered ability to prepare their defense and partly to their increased likelihood of pleading guilty, although other factors may be at play.
Harsher Sentences for Those Convicted
The ACLU of Washington cites a study that “shows that people jailed before their trial receive sentences that are almost five months longer than those who are not jailed before trial.” Similarly, the same Galveston County audit mentioned above found that a felony defendant who can’t meet bail is “four times likelier to be sentenced to more than a year in prison, and is half as likely to be sentenced to probation or deferred adjudication.”
Prosecutors and judges are more liable to promote shorter sentences for those who have demonstrated good behavior in the community and participated in treatment or services prior to trial. Those who are jailed before trial don’t have the opportunity to do this.
Other Negative Consequences
Pretrial jailing also negatively affects defendants’ finances, families, and health.
Financial Problems
Pretrial detainment can cause a variety of financial problems, including:
- Loss of employment: Defendants not only miss out on the income they could be earning if awaiting trial outside of jail, but are also likely to lose their jobs altogether. Extensive detention may also jeopardize defendants’ future professional success — even if they are later found not guilty. The negative perception of jail and the gap in employment history may limit job prospects and earning potential throughout a defendant's lifetime.
- Loss of housing: Loss of income may cause the defendant to miss a rent or mortgage payment, resulting in additional fees or even eviction. This may permanently impact their rental and credit history.
- Loss of education: If defendants are in school or job training, pretrial detention may disrupt these opportunities, in turn affecting future employment prospects. While prisons tend to have some education and training opportunities available, the local jails in which arrestees await trial do not.
- Loss of public benefits: Defendants who are jailed prior to trial often lose state and federal public benefits, including Social Security and Medicaid.
Family Problems
Pretrial detention can cause a variety of family issues, particularly if the defendant has children. For instance, parents may lose custody if they are unable to find caregivers. In some cases, the partner or children may need to take on new responsibilities, including providing domestic, emotional, or financial support. The stress of all of this may put strains on the marriage itself.
Health Problems
County jails tend to have limited and insufficient health services, if they have any at all. Defendants awaiting trial may not have access to their medications, or may have to wait days to weeks to receive them. And jails are often negative environments for those with mental illness, as they lack access to education, physical activity, and specialized care.
Suicide is also a risk for those who are detained prior to trial. Defendants awaiting trial in jail commit suicide as much as nine to 14 times more often than the general population, and account for 75 percent of all suicides that occur in custody.
How Bail Bonds Can Help
When arrestees can’t meet cash bail, bail bonds give them more options to await trial at home with their loved ones — and avoid all the negative effects of pretrial imprisonment.