Bail Reform in the Rural United States

May 10, 2021 by Aburiyeba Amaso

by Nick Devine

Bail Reform in the Rural United States

The country is in the middle of a much-needed debate over reforming cash bail systems. While the system was initially meant to ensure that defendants returned to stand trial, it has morphed into a process that needlessly locks up poorer individuals who have not been convicted of a crime.[1] These stays are often far from temporary and can keep a person in detention for months or even years if an individual cannot pay.[2]  Recognizing that cash bail creates a two-tiered system of justice where the wealthy go free and the poor do not, Illinois recently abolished the practice outright,[3] and New York, California, and New Jersey have passed high profile reform bills in the last few years to curb its use.[4] In March, California’s Supreme Court expanded on the state legislature’s reforms, requiring judges setting bail to consider a defendant’s ability to pay when setting terms as well as cash bail alternatives.[5] Some cities have pushed ahead when their states have not, with district attorneys such as Larry Krasner no longer seeking cash bail for low level crimes.[6] Contrary to critics’ worries, eliminating cash bail does not increase crime; New Jersey published a study in 2018 that indicated defendants released without bail are just as likely to return to court as defendants who had posted bail under the previous system.[7] These reforms go a long way to ensuring that there is a true equality before the law, where financial ability will not determine freedom.

Why it impacts Rural America

Many of these reforms are enacted statewide, and will aid defendants in both urban, exurban, and rural settings.[8] However, as these reforms are discussed and promoted, it is imperative that advocates remember the unique circumstances that rural defendants face. With access to fewer attorneys, it is more difficult for rural defendants to obtain representation them in bail hearings, especially because the Constitution does not guarantee counsel at a bail hearing.[9] Thus, the California Supreme Court’s reforms would be ineffective in many states because it depends on counsel being present to challenge an incorrect decision.[10] This is not a critique of reformers, who have done an incredible job not only of promoting reform bills in statehouses across the country and have also set up bail funds for defendants in smaller cities.[11] However, short of cash bail abolition like in Illinois, these reforms are only as good as the judges who set the bail.

There are already examples of judges following the letter but not the spirit of bail reform measures. In New York, which requires judges to consider either unsecured bail (where the defendant agrees to pay an amount if they do not show up for court) or partially secured bail (where they must put up 10% of the bail, and are liable for the rest if they do not show up), judges have been using partially secured bail but setting bail higher than it was under the previous system, substituting one hurdle for another.[12] In one burglary case, the judge set bail at $750,000, forcing the defendant to secure $75,000 to be released.[13] It is clear that certain judges have found creative ways to circumvent reform, and in rural areas where there are fewer advocates and attorneys to watch over their actions, defendants will have no one to ensure bail reform measures actually take hold.

Reformers and advocates have made monumental progress in ending a truly oppressive system. However, so long as these reforms give judges discretion in setting the price of bail, they risk allowing judges to continue setting astronomical bail amounts and keep poor defendants locked up. In rural areas, where there are fewer attorneys to hold them to account, all that stands in the way of injustice is the conscience of the judge. If we want to protect rural defendants, we must not rely on such a fickle thing–we must create more robust systems that ensure justice is upheld regardless of income.

[1] See Jessica Brand & Jessica Pishko, Bail Reform: Explained, The Appeal (June 14, 2018) (“As many as 500,000 people are held around the country in local jails because of their inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not convicted, of crimes.”).

[2] In an especially heartbreaking example, Kalief Browder was arrested at the age of sixteen for allegedly stealing a backpack. His initial bail was set at $3,000, but he and his family were unable to pay. After over two months in jail, his bail offer was rescinded, and he remained in jail on Rikers Island, often in solitary confinement, for three years before prosecutors dismissed the charges. He committed suicide shortly after his release. Alysia Santo, No Bail, Less Hope: The Death of Kalief Browder, The Marshall Project (June 9, 2015)

[3] Cheryl Corley, Illinois Becomes 1st State to Eliminate Cash Bail, NPR (Feb. 22, 2021)

[4] State of Justice Reform 2019, Vera Inst. of Justice (2019)

[5] In re Humphrey, Cal. Unrep. S247278 at *2-3 (Cal. 2021).

[6] Bryce Covert, Progressive Philly D.A. Larry Krasner’s Bail Reform Plans seem Stalled, Advocates say, The Appeal (June 25, 2019)

[7] Glenn A. Grant, 2018 Report on Criminal Justice Reform to the Governor and Legislature, N.J. Judiciary (2018),

[8] See, e.g. State of Justice Reform, supra n. 4 (Noting that California, New Jersey, and New York’s reforms are at the state level).

[9] See David Carroll, Right to Counsel Services in the 50 States, (March 2017), (noting twelve states have no central public defenders system); April Simpson, Wanted: Lawyers for Rural America, Pew (June 26, 2019), (in many rural areas, criminal defense is done by contracting defense attorneys); Jessica Pishko, The Shocking Lack of Lawyers in Rural America, The Atlantic (July 18, 2019), (where there are few rural attorneys, it becomes harder to represent criminal defendants without incurring professional discipline due to conflicts of interest).

[10] Jessica Pishko, Cash Bail is Creating a Crisis in Rural Jails, The Appeal (Mar. 12, 2020)

[11] For instance, the Bail Project has offices to aid defendants in need of bail assistance in Spokane, Washington (population: 217,000), and Fayetteville, Arkansas (population: 85,000), and has a partnership program in San Marcos, Texas (population: 63,000). Locations, The Bail Project (last visited Apr. 24, 2021)

[12] Akash Mehta, A Broken Bond: How New York Judges are Getting Around Bail Reform, N.Y. Focus (Oct. 12, 2020)

[13] Id.