Bail or (collateral) consequences

April Camara of the National Legal Aid and Defender Association (NLADA) writes as a guest blogger about how the availability of bail may determine whether an individual is adversely affected by collateral consequences:

The Prison Policy Initiative recently reported that the explosive growth in jail populations since the 1980s is predominantly the result of jailing people who are accused of crimes and awaiting trial.[1] This is especially true for the past 15 years, in which time 99% of jail growth has been comprised of people who are detained pretrial and legally presumed innocent.[2] To curb this growth, the MacArthur Foundation has invested more than $100 million dollars into reducing jail incarceration and racial disparities in America through the Safety and Justice Challenge (“SJC”).  NLADA serves as a strategic ally in the SJC, and we are making the case to show investing in public defense yields system-wide benefits to pre-trial reform.  We understand that a person’s likelihood to be released on bail while pending trial is significantly increased when they are represented by counsel, and defense advocacy minimizes the harm that incarceration does to a person’s life.  Research shows that people who are in jail before trial have worse outcomes in their criminal cases and in their lives.[3] As a result of pretrial detention, they are:

  • More likely to fail to appear for court.
  • More likely to lose connections to employment, housing, and family.
  • More likely to be convicted.
  • More likely to have a longer prison sentence.
  • More likely to be rearrested for new crimes. [4]

These long-term collateral consequences destabilize not just the accused and their families, but their wider communities. Criminal justice stakeholders involved in the Challenge understand these implications, and defenders are collaborating with local stakeholders to reduce the overall number of people who are presumed innocent and are in jail while awaiting trial.



[1] Joshua Aiken, Era of Mass Expansion: Why State Officials Should Fight Jail Growth, Prison Policy Initiative,(2017).

[2] Peter Wagner, Jails matter. But who is listening?, Prison Policy Initiative (Aug. 14, 2015). .

[3]See Incarceration’s Front Door: The Misuse of Jails in America, Vera Institute (2015).

[4] Aiken, supra note 1; Laura & John Arnold Found., Pretrial Criminal Justice Research (2013); Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (2017).