Pay Up or Stay Put: The ability to post bail plays a big role in who gets out of jail.

• Author: Pirius, Rebecca
• Position: CRIMINAL JUSTICE

In the 1800s, a person could land in jail for not paying rent to his or her landlord.

Debtors' prisons were banished almost two centuries ago, but it's not uncommon to see the term in news headlines today. A debtor can no longer be locked up for failing to pay a private creditor, but people can end up behind bars if they can't pay their court fees or can't make bail before their case is heard. Pretrial defendants, despite being presumed innocent until proven guilty, can languish in jail, sometimes for months, without being convicted of a crime.

Recent criminal justice reforms are shedding light on the roles wealth and poverty play in determining who goes free.

Recent Reforms and Court Cases

Pretrial release and bail reform efforts, such as reducing reliance on cash bail and using non-financial release options, are sweeping the nation. In nearly half the states, the law starts with the presumption that certain defendants be released solely on their promise to appear.

Now, attention is turning to whether the accused's ability to pay should matter when setting bail. According to a report from the Federal Reserve, making bail would be a hardship for 40 percent of Americans, who say they do not have at least $400 available in cash for unexpected, emergency expenses, like a flat tire or broken appliance, or a bail bond.

A California case made headlines earlier this year when a court ruled that a "defendant may not be imprisoned solely due to poverty." The case involves Kenneth Humphrey, then 63, who was accused of following a 79-year-old disabled man into his apartment and demanding money. Humphrey has a history of substance abuse and several prior felony convictions. In this case, he allegedly took S7 and a bottle of cologne from the man.

Bail was originally set at $600,000, tantamount to a detention order for Humphrey. California's 1st District Court of Appeal held that the lower court's failure to consider what Humphrey could afford when setting his bail violated his due process and equal protection rights.

The case is just one of several nationwide in which bail schedules amount to a form of wealth-based detention. As courts address the issue, state legislatures are beginning to step in and tackle financial inequities associated with pretrial detention. Below are examples of several recent legislative efforts.

Ability to Pay

Ability-to-pay determinations often require courts to consider factors beyond a defendant's income and assets when...