Does cash bail work in the criminal justice system? Is it a justified necessity or a due process violation? Unlike many of the articles and research studies you will find regarding the topic of the cash for bail system in America, I find this topic not to be about race, ethnicity, gender, democrat, or republican.
90% of people being held in jail with a set bail will plead guilty to a crime they did not commit just so they can go home. I know this is true because that is exactly what I did almost ten years ago. I hadn’t a clue as to how the “justice” system really worked. Neither do the vast majority of Americans in my experience.
Almost half a million people are in jail awaiting their day in court in any given moment in America. What happened to our constitutional beliefs that so many of my fellow conservatives claim to feel so strongly about?
The Justification For Cash Bail Seems Logical Enough.
When someone is suspected of committing a crime the courts, by default, act as if that person is likely to skip or miss their court date. The court believes they need to add an incentive to show up, and therefore tells the accused that they may leave jail if they post bail money. Simple enough. Right?
So, Does Cash Bail Work Effectively For Justice?
Unfortunately, cash for bail is far more complex than that and in ways beyond the violation of the presumption of innocence fundamental to our justice system.
The bail industry obviously opposes any reform to the cash bail system, saying that pledging cash or bonds is necessary to get people to show up back to court.
So what is the trouble with the cash bail system? If you are wealthy you can overcome and make cash bail work for you.
However, most don’t have an extra $500 or more to shell out. If the person that is jailed can’t afford to post bail, they are held until their court date. Waiting for a scheduled court appearance can take months and sometimes a year or longer! Life doesn’t stop because you can’t afford the cost of bail. While waiting for a trial, the accused can (and most do) lose their job, their custody rights, and their home, all before being convicted of a crime.
About 47 percent of felony defendants with bonds, nationwide, remain jailed before their cases are heard because they cannot make bail.
When facing down the prospects of losing their livelihood, arrested persons may see a confession for a lesser sentence and an accompanying release as more appealing, even if they have done nothing wrong.
If the person faces any legal fees after being released, they will find them much more difficult to pay with a criminal record that results from that plea “deal” and may have cost them a job. The cash bail system punishes innocent people for not being able to afford bail, essentially punishing them for being poor.
Superior Court Judge Truman Morrison, a judge since 1979, said, “There is no evidence you need money to get people back to court, it’s irrational, ineffective, unsafe and profoundly unfair.”
Keeping people in jail while awaiting trial is dangerous. The Bail Project says, “41 percent of sexual victimization happens in the first three days after an arrest and almost half of suicides and other deaths in jail happen in the first five days.”
Are There Alternatives To Cash Bail?
Judge Truman Morrison said, “We’ve proven it can work without money, but the whole country continues as if in a trance to do what we know does not work”. The new way of thinking that he promotes is in line with the federal system, which bars judges from setting financial barriers to keep someone locked up in jail.
There appear to be intermediaries emerging that may help develop a more robust case for no-cash bail at the same time that they help with fundraising for and establishment of the funds.
Washington D.C., California, and now several cities in Mississipi seem willing to try alternatives.
Efforts to eliminate or reduce the use of money bonds and fixed bail payments have become part of a national movement to overhaul the criminal justice system because of the impact on poor defendants.
Over the past two years, Robin Steinberg has raised $30 million of a $50 million-dollar goal to seed local revolving bail funds for indigent defendants. Steinberg is the founder of the Bronx Freedom Fund, which has been bailing New Yorkers out for the past ten years and a former director of the Bronx Defenders, a free legal clinic.
Bail Project plans to establish sites in St. Louis and Tulsa, Oklahoma early next year, then expanding to three dozen cities in the next five years.
Innocent Until Proven Guilty Should Not Depend On Income.
In America, the reality is, when someone gets locked up and can’t afford to pay their bail, they have two choices: plead guilty to the crime, or sit in jail until our backlogged courts can bring them to trial, which in many cases can take years. I believe that people should not have to plead guilty to a crime simply because they can’t afford a bail payment.
According to Alan Feuer at the New York Times, [Robin] Steinberg said that 96 percent of the people in the Bronx whose bail was paid by her local fund in the last 10 years returned to court for all of their appearances. If that statistic could be replicated nationwide, she added, the national fund could exist in perpetuity as the money given to help clients close their cases returns to the kitty for future use.
Ms. Steinberg also noted that remaining in jail without paying bail can affect the results of criminal proceedings. In New York, she said, more than 90 percent of those who cannot pay bail and stay locked up until their cases are concluded end up pleading guilty. But more than half of her clients in the Bronx who were freed on bail, she said, had their cases dismissed by prosecutors once they were released.
A push for pretrial justice has gained momentum and attention in part because of recent prominent cases, including the $500,000 bail set for a Baltimore protester after the death of Freddie Gray and the detention of a teenage boy, held at Rikers Island for three years on robbery charges that were eventually dismissed.
Cash Bail = Immoral And Unconstitutional.
Lawyers say that not only is the widespread practice of cash bail immoral, but it is also unconstitutional.
In an article on Rewire News, Alec Karakatsanis, founder and executive director of Civil Rights Corps, which brings cases arguing the illegality of cash bail to courts across the country was quoted saying, “It’s an equal protection violation, because it’s creating a system where the poor are detained and the rich are freed; and it’s a due process violation, because it’s keeping presumptively innocent people in jail prior to trial without the procedures and findings necessary to justify that kind of deprivation of liberty.”
The arguments that cash bail is unconstitutional are pretty straightforward, and, according to legal experts, there is no real justification for the system. Yet courts continue to charge bail because there is not enough political pressure to end the practice. “Until we get the public demanding it, we’re not likely to see extraordinary changes,” explained Karakatsanis.
Bail is only one of a number of elements of the criminal justice system that disadvantage poor people, forcing them into far more jail time, guilty pleas, and convictions than a more well-off person would experience, but it is an important one.
The argument that cash bail is unconstitutional is pretty straightforward, there is no real justification for that kind of system. Preset bail, with no inquiries into a person’s ability to pay, violates their 14th Amendment rights to equal protection and due process.
I believe that once people realize that citizens are sitting in jail before being convicted of anything, and a judge says ‘you can go home if you have $1,000′, most people will grasp that as fundamentally unfair.
There are numerous instances of judicial bias in sentencing. Is it so far-fetched to think that the same biases might apply in
setting bail? At the same time, we do not want a system that lets dangerous criminals out, free to commit more crimes before they face justice. Effective reforms will need to take this into account.
If you have questions or comments or just want to join the discussion, post them below.