In 1987 the Supreme Court ruled that in the United States, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” reifying the notion that everyone is innocent until proven guilty. The cash-bail system, however—utilized in the majority of jurisdictions across the country to determine which defendants will remain incarcerated until trial—has created a situation in which pretrial liberty is contingent on economic, instead of legal, status. In other words, being jailed because of an inability to pay, despite being legally innocent.
According to the Prison Policy Initiative, pretrial detention accounts for all net growth in the jail population between 1983 and 2016. Proponents of requiring financial collateral for pretrial release argue that it helps ensure a defendant’s future appearance for all court dates and thereby improves accountability. But there is a growing recognition among states, researchers, and policymakers that the use of monetary bail is an unjustifiable infringement of a person’s rights that has resulted in mass overincarceration, is racially prejudiced, and is costly to the taxpayer. Moreover, its aims are achievable through other means.