How Cashless Bail and Bail Reform Policies Are Leading to Preventative Detention
The Unintended Consequences of Pretrial Release Activism
When activism overrides collaboration in the criminal justice system, the push for cashless bail and bail reform can backfire, steering policies toward preventative detention. This article explores how proponents of bail reform and cashless bail have contributed to this shift.
The Bail Project’s Report on Pretrial Justice: A Critique of Cashless Bail and Bail Reform
The Bail Project released a new report on January 13th entitled “Detention by Design: The Constitutional Crossroads of Pretrial Justice.” The report aims to provide a constitutional history of bail but veers quickly into activism. As it often does, the Bail Project targets judges, law enforcement, and bail bond agents for any and all issues in the system, particularly the recent nationwide trend of states amending their constitutions to permit preventative detention.
The report avoids a genuine analysis of why this shift toward preventative detention is occurring, instead perpetuating the same tired narrative that bail is inherently discriminatory, unfair, and harmful.
The Irony of Bail Reform: How Cashless Bail Contributes to Preventative Detention
It is hard to read this report and not think of Alanis Morissette’s song, “Ironic”—because the drive for preventative detention most likely stems directly from the activities of the Bail Project and their push over the past decade for bail reform and cashless bail. Failed policies around decriminalization, unaccountable own recognizance releases, and ineffective taxpayer funded pretrial supervision—hallmarks of bail reform—have played a key role in what we see happening today. These are the very policies championed by the Bail Project and its network of organizations, including the MacArthur Foundation, Henry Frank Guggenheim Foundation, the VERA Institute, Pretrial Justice Institute, and the Brennan Center for Justice.
Ironically, while the report lectures us on constitutional issues, it fails to acknowledge that the rise in preventative detention isn’t due to bail bond agents but rather the outcomes of their own advocacy for cashless bail and lenient pretrial release policies.
The False Narrative Behind Cashless Bail and Bail Reform
For over a decade, the Bail Project, backed by wealthy donors, think tanks, and academic institutions, has invested millions in promoting a misleading story: that incarceration solely results from inability to afford bail. They emphasize discrimination in the bail system, portraying it as inequitable, while blaming law enforcement, judges, and bail bond agents. Notably absent from their critique? Accountability for the accused and consideration for victims.
This narrative ignores how cashless bail and soft-on-crime pretrial release programs create new victims. In Harris County, Texas, bail reform initiatives have led to failure-to-appear rates exceeding 80% across criminal courts. When defendants skip court under cashless bail, they often reoffend, victimizing more people.
Real-World Impacts of Bail Reform and Pretrial Release Failures
In Yolo County, California, the adoption of zero bail and cashless bail correlated with rising violent crime and shorter intervals between re-offenses. This means more crimes committed faster, directly tied to policies endorsed by bail reform advocates like the Bail Project.
Jurisdictions nationwide report similar issues: defendants failing to appear and reoffending due to unfulfilled promises of bail reform. It’s challenging to view the Bail Project’s report credibly amid this evidence. The irony of their opposition to preventative detention is striking—communities are embracing these measures precisely because of the fallout from the cashless bail and bail reform policies that they promote.
Time for Reflection on Cashless Bail and Bail Reform Policies
Perhaps the Bail Project should reflect on how their advocacy for bail reform has fueled this trend. Understanding why voters support preventative detention could reveal the self-inflicted nature of the problem. In the end, the blame for the shift away from traditional bail toward detention lies with the reformers themselves.