Bernie Sanders has softly beat the drum for bail reform in the federal system. The Bail Reform Act of 1984 made it dramatically easier to keep people locked up before federal trials; most of the states followed suit. Today, roughly two-thirds of the people in jail are there either because they are too poor to make bail, or because they’ve just been arrested and will make bail in the next few days. Over the last 15 years, fully 99 percent of the growth in the jail population is due to increased incarceration of the legally innocent.
But what would bail reform look like? There are two basic principles: First, work to make sure arrestees are processed as fast as possible — ideally within 24 hours, as many jurisdictions are moving towards. Second, very sharply reduce the use of money bail. If used, it should never be beyond a person’s ability to pay. No person should ever rot in jail waiting for a trial because he can’t scrounge up the cash to make bail — poverty should not be a crime. Besides, research from the Vera Institute of Justice shows that bail is largely worthless for making sure that accused criminals show up to trial. In most cases, it simply isn’t needed — basic pretrial supervision works much better. Additionally, there is tremendous churn in and out of the jail system — 11.4 million people were admitted in 2014. Bail reform would thus be more about diverting the flow of prisoners rather than releasing lots of long-term ones. A new federal law mandating speedy processing of arrestees, and sharply restricting the use of money-bail, would erode the jail population from two directions at once. It could be combined with incentives to use alternatives to arrest, like citation-and-release or pre-booking diversion, to further slow the rate of jail entry. At a very rough guess, such a reform done well could knock about a third — perhaps 200,000 people — off the jail population.