The Slippery Slope of Sliding Scale Bail

I was recently teaching an Equitable Pretrial Justice class with my colleague Shavonte when we were asked about “ability to pay” determinations. Why isn’t it something that is included in our course as a best practice?  Why don’t we talk about how to implement them?

We don’t mention ability to pay in our courses at all, but not because we’re opposed to the idea in practice. If a person facing charges would otherwise be detained on an unaffordable money bond, an ability to pay determination can mean the difference between a dangerous and disruptive jail stay and freedom. This can be a life-changing option for people who would otherwise be separated from their children, need to ask family members to sign contracts with bail bondsmen, or feel compelled to accept a plea bargain so that they can go home. Cook County, IL has shown the positive benefits of ability to pay determinations—in the first 6 months after their policy went into effect, more than 3500 additional people were released on their own recognizance.

Ability to pay is a band-aid on the hemorrhage that is money bond.

As a pretrial justice policy, though, ability to pay is a band-aid on the hemorrhage that is money bond. The reason that ability to pay determinations are seen as a necessity is because hundreds of thousands of people languish in U.S. jails because they can’t afford to pay their bond (or pay a fee to a bail bondsman).  However, the best practice to address this injustice is not to find an affordable bond amount; it’s to eliminate money bond. Illinois recognized this as well—when the legislature passed Pretrial Fairness Act in 2022, the lesson they took from Cook County was not that ability to pay determinations needed to be implemented statewide, but that money bond could be safely eliminated throughout the state.

If we examine how ability to pay determinations are implemented, it reveals how arbitrary money bonds are. Money bond is supposed to be a method to facilitate release. So how does a judge decide how much someone is able to pay to go home? If a person has $2000 in the bank, but nearly all that money is reserved for this month’s rent, can they afford to pay a $2000 bond? If someone has no cash on hand, does that mean that the court can go after their possessions? The National Legal Aid and Defender Association estimates that 80% of people facing charges in state courts qualify as indigent for the purposes of being assigned public counsel. Why can a person who qualifies for free defense services also have to pay a money bond on a sliding scale? 

And while courts ponder these decisions, people facing charges—people who are presumed innocent—have to experience the dehumanizing process of having their worth quantified in order be free.

We have zero evidence that taking someone’s last $100 makes our communities safer. 

And once you decide how much someone can afford, how do you know if that’s enough “skin in the game"? (Remember, that’s the theory behind money bond—that once someone is financially invested, they’ll come back to court safely to get their money back.) However, there’s no research that tells us whether $10 or $10,000 motivates people to return to court. We have zero evidence that taking someone’s last $100 makes our communities safer. Ability to pay determinations add a patina of compassion and legitimacy to an unproven and ineffective money bail system.

Instead of putting on band-aids, we need to stop inflicting these wounds and let our communities fully heal. Instead of wondering how much it should cost for someone to buy their freedom, we should be wondering what they need to be successful. Instead of extracting wealth, we should be investing in communities. So, as we push for best practices, our team at PJI won’t be talking about how to implement ability to pay determinations. Instead, we’ll be talking about how to end money bond.