If you had guess what most people in the American jail system had been convicted of, what crime would you pick? Robbery? Driving while intoxicated? Loitering? The correct answer is “nothing”, and that’s why the historic drop in the U.S. crime rate hasn’t been coupled with an equally massive decline in the jail incarceration rate.

Jails don’t just hold inmates who have been convicted of crimes. They also hold people like the late Kalief Browder who are accused of crimes but have yet to be tried in court. Bureau of Justice Statistics data shows that the U.S. jail population is increasingly composed of such people, who may not be guilty of anything.

The report notes that from 2000 to 2014, “95% of the growth in the overall jail inmate population (123,500) was due to the increase in the unconvicted population (117,700 inmates).” The U.S. population increased by almost 35 million people over this period, meaning that the essentially flat number of convicted inmates would represent a sizable fall in the jail incarceration rate if it hadn’t been largely cancelled out by the surge in unconvicted inmates.

Why are so many more non-convicted people in jail now than in the past? Vera Institute highlights the role of bail conditions. During the era when the crime rate was much higher, judges became increasingly less willing to release defendants on their own recognizance. By 2009, 61% of felony cases attached financial conditions to pre-trial release, a 50% increase from 1990.

Finding the money to put up a bail is a challenge for lower-income arrestees (i.e., most arrestees): the “choice” between making bail and sitting in jail is often not really a choice at all. Because low-income people increasingly stay behind bars waiting for their day in court, the collapse in the crime rate hasn’t translated into a comparable decline in the human and economic costs of America’s jails.

Political leadership for a policy of “less bail means less jail” could ameliorate this problem. As a policy proposal, “less bail” has two components.

First, more people accused of crimes should be released on their own recognizance, just as they were a generation ago. An innovative experiment known as the Manhattan Bail Project showed that far more people than is commonly believed will appear at their trial even with no bail conditions. Specifically, the study released 3,505 people without bail and found that only 1.6% did not appear at trial for reasons under their control.

Second, when bail conditions are imposed, the financial amounts should be reduced. The Vera Institute notes that bail amounts have grown faster than inflation, putting them out of reach of many low income people. Psychological research indicates that human beings are loss averse, meaning that any financial loss carries significant weight in decision making independent of its size. Practically, this means the risk of losing $300 for not appearing at trial can have as much deterrent effect as the risk of losing $500 or $1000. Judges will have to experiment to find the “sweet spot”, but the odds are very good that it is substantially lower than the amounts commonly imposed today.

Reducing how often bail is imposed on arrestees and how much it costs when it is imposed would have multiple benefits. First, fewer arrested individuals, who it has to be remembered could be completely innocent, will suffer the degradation and pain of incarceration and its radiating damage to family and employment prospects. Second, jails would be less crowded, making them safer both for inmates for the staff who work in them. Third, public sector budgets that are straining to keep so many unconvicted people in jail would gain some much needed relief.

[Cross-posted at The Reality-Based Community]

Keith Humphreys

Keith Humphreys is a professor of psychiatry at Stanford University. He served as a senior policy advisor at the White House Office of National Drug Control Policy from 2009 to 2010.