For the Defense - Vol. 7, Issue 4 - 30

Funding the Gap:
How Bail Funds Alleviate
the Inequities in the
Cash Bail System
s a public defender, I had neither the luxury of time nor
the inclination to consider the systemic issues affecting
my clients. I was too deep in the proverbial forest. When
it came to bail, for instance, I rarely put forth the effort to
understand the processes which led to my clients being " in " or
" out " and I never considered whether their experiences were
representative of some larger pattern. Afterall, I could not help
what happened in the days or weeks before I met my clients. My
job was to help my clients moving forward, and there was no
practical use in arguing systemic injustice.
Don't get me wrong, I understood bail. I understood that-
with some narrow exceptions-everyone charged with a crime
is entitled to bail1
and that " [t]he fundamental purpose of
I had a
and I also understood that bail is not
bail is to secure the presence of the accused at trial. " 2
command of the different types of bail.3 I could rattle off many
of the " release criteria " 4
supposed to be excessive.5 But it wasn't until I left the public
defender's office and took a step back that I started to see the
chasm between bail law and bail practice.
Bail funds exist because of this gap.
One doesn't have to look hard to find support for the
principle that " [t]he law favors the release of defendants
pending adjudication of charges. " 6
Our rules and the relevant
caselaw make clear that cash bail should only be set where
" necessary to reasonably ensure the defendant's appearance
and compliance " ,7
should consider the financial ability of the accused,8
that a judge imposing monetary conditions
and that
cash bail should never be set for the sole purpose of keeping an
accused person incarcerated until the disposition of their case.9
30 For The Defense l Vol. 7, Issue 4
A
Michelle Batt
In essence, cash bail is supposed to be reasonably attainable,
and it is intended to be posted. It is because of our strong
laws on this point that the American Civil Liberties Union of
Pennsylvania (hereinafter " ACLU-PA " ) contends, " if the system
were functioning as our Constitution envisions, every person
assigned money bail should be able to post it. " 10
But that is not
what we're seeing.
Across our nation, the pretrial population in local jails has
Cash bail is a large contributor to this ballooning
grown significantly, increasing 433 percent between 1970
and 2015.11
population and mass incarceration in general. According to the
American Bar Association (hereinafter " ABA " ) in a 2019 report:
" Nationwide, more than 60 percent of jail inmates are jailed
pretrial; over 30 percent cannot afford to post bail. " 12
Lancaster County-where I live, worked as a public defender,
and later helped found the Lancaster Bail Fund13
-is no
exception. In 2021, 69% of the people behind bars in our jail
were being detained pretrial.14
500 legally innocent people per day.15
In real numbers, this is about
And while our jail does
not disaggregate its data further to reveal the percentage of the
population that is incarcerated due simply to inability to afford
the often-arbitrary price of their pretrial freedom, we can guess
based on the ABA's report, supra, that approximately half of the
pretrial population is there only because they lack access to cash.
In December of 2021, the ACLU-PA published a report detailing
its findings following a state-wide bail study it conducted using
data collected from every criminal case filed in Pennsylvania
over a two-year period covering calendar years 2016 and 2017.
Thanks to this report, we have some valuable insight on bail
For the Defense - Vol. 7, Issue 4

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