Our Unconstitutional Bail System

A cornerstone of the American justice system is that all accused are entitled to a presumption of innocence until proven guilty, but with the way that the bail bond system is implemented in most courtrooms in this country, there seems to be an expensive buy-in price for that basic right. The way bail works is that when a defendant is charged with a crime, a judge or magistrate typically sets a price tag on freedom for that person, for while he or she awaits trial – if the defendant can pay a sum (usually 10% of the set bail amount), then he or she can “bond out” and go home until trial; but if the bail amount set is cost prohibitive for the defendant, the accused must stay in jail for however long it takes until the charges are heard or dismissed. In a totally unjust twist, sometimes the length of time that the defendant waits in jail for a trial date is actually longer than the amount of time he or she would have had to serve for the offense had there been a trial, conviction, and sentence. Thus, the presumption of innocence does little for many poor defendants, and there is a huge incentive to plead guilty to offenses, even when innocent, so as to not be stuck in jail waiting for a trial.

The amount of bail set is in any given case is fairly arbitrary, set at the whim of the judge or magistrate. The norm in most places is that the court does not give consideration to the defendant’s ability to pay in setting the bail amount, but this norm is unconstitutional. In fact, in a recent lawsuit contesting an Alabama court’s lack of consideration for a defendant’s inability to pay bail, the United States Justice Department weighed in and acknowledged that any system of bail that does not factor in the inability of a defendant to pay is unconstitutional, denying poor people the “equal protection of the laws” guaranteed by the 14th Amendment.

For poor people and people living on the edge of poverty, even a short jail stint often means loss of employment, eviction, or loss of child custody. Moreover, there are societal costs, not just for pushing poor people over the precipice, but also for the expense of imprisoning people who have not been convicted of any crime. Bemoaning that “[e]very day, thousands of people, primarily minorities, sit in Cook County’s jail, not because they have been found guilty or pose a threat to their community, but because they are too poor to pay their bail,” Toni Preckwinkle, President of Cook County Board of Commissioners (Chicago), wrote in a recent editorial to the New York Times, that this system “devastates individual lives and communities and costs taxpayers more than $500 million every year[.]”

The idea behind bail is that it is supposed to impose a monetary risk that (in theory) decreases the risk of the defendant fleeing before the charges can be heard. But there certainly are constitutional alternatives that address that goal: GPS monitors can be used to keep track of accused defendants; pretrial supervision (similar to probation) is another option; and unsecured bonds (where the defendant is released without having to pay, but owes money if he or she fails to appear in court) provide yet another alternative. Given our country’s over-incarceration problem, it is stunning to learn that every day, 60% of the jail population is people awaiting trial who have not been convicted of any offense. The time has come to end wealth-based pretrial detention.

For a more detailed, funnier, and irreverent argument against the bail system, there’s always John Oliver:

Published on Jun 7, 2015: John Oliver explains why America’s bail system is better for the reality tv industry than it is for the justice system.


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