Why Kansas conservatives should support eliminating cash bail

“In Kansas, 53% of those detained in our county jails are not serving a post-conviction sentence, nor are they being held to answer to a motion to revoke their probation. These inmates are simply awaiting disposition of a current charge against them,” according to the Kansas Supreme Court's 2020 Pretrial Justice Task Force report. (Darrin Klimek/Getty Images)

The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Paul Samberg is a second-year student at the University of Kansas studying journalism, Jewish studies and political science.

Kansas must eliminate cash bail. It’s an outdated, ineffective policy that mostly punishes low-income individuals while disproportionately affecting communities of color.

Thankfully, Kansas is working on it. A taskforce composed of lawyers, judges and corrections officials was formed by the Kansas Supreme Court in 2018 to study pretrial reforms. In their 2020 report, the taskforce concluded that “while the protection of public safety is paramount, the integrity of our pretrial justice system demands that people are not unnecessarily detained pretrial in Kansas jails.”

Eliminating cash bail would be a momentous first step in protecting the integrity of the pretrial justice system.

Cash bail is a program used to ensure defendants are present for their trials or hearings. By paying bail, a defendant is released pretrial and, if they are present for their court date, they will get their money back. However, those who cannot afford paying bail are left suffering in jail while they await trial.

“In Kansas, 53% of those detained in our county jails are not serving a post-conviction sentence, nor are they being held to answer to a motion to revoke their probation. These inmates are simply awaiting disposition of a current charge against them,” the study said.

People who are incarcerated over their inability to pay bail are disproportionately Black and Latino. More than 60% of the pretrial incarcerated population is Black or Latino, but only 25% of the United States population is Black or Latino. Comparatively, white people make up 68% of the United States population but just 31% of those incarcerated pretrial.

These individuals are also overwhelmingly low-income. While the median income for males unable to make bail is $15,598, the median income for non-incarcerated males is $39,600. Among women, the difference in median income among incarcerated and non-incarcerated individuals is $11,633.

Unfortunately, those who argue that cash bail is a good thing don’t focus on its systemic inequities. The common argument against eliminating cash bail is that it will put criminals back on the street, but that simply is not the case. Though eliminating cash bail will drastically decrease the prison population, defendants who may pose dangers to the public will not be released pretrial.

In areas where cash bail is not used, defendants have high rates of showing up to trial. Washington, D.C., releases 94% of defendants pretrial, and 91% of them are present for their court dates. In 2016, New Jersey passed a sweeping set of criminal justice reforms, including minimizing the use of cash bail. The following year, 95% of defendants were released pretrial, 89% of them appearing at their trials.

Study after study indicates that cash bail is not imperative for mitigating crime and ensuring trial attendance. So, if that is the case, what is stopping Kansas from eliminating the discriminatory policy?

The reason is pretty simple: politics. Nationally, Republican lawmakers struggle to find common ground among themselves regarding criminal justice reforms, partly because many, though not all, oppose such reforms.

Republicans still wary of eliminating cash bail should consider that supporting its elimination would actually be the principled decision. After all, conservatives support a more limited government, often working to lower taxes for Americans. By supporting cash bail, though, they are subsequently supporting a program that costs American taxpayers about $38 million each day and $14 billion annually.

Kansas has taken an interest in the effectiveness of cash bail and potential alternatives since the task force convened in 2018. Time and again, it is clear that there are successful alternatives to cash bail that do not discriminate against poor and minority communities. This is why it is time for the legislature and Gov. Laura Kelley to turn their interest and research into action.

Instead of continuing to increase the rate of recidivism and perpetuate the overt inequities in the bail system, the Kansas legislature should work in a bipartisan manner to eliminate cash bail and allow defendants to stay out of jail until they’re actually proven guilty. Americans are, after all, presumed innocent until a jury decides otherwise. It’s the right and sensible thing to do.

Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.