Is Bail Reform is a Bad Idea?

Nearly 70 percent of the individuals locked up in local jails in the US have one reason for being in detention: they can’t afford to pay bail. Surprisingly, most of these individuals are locked up for allegedly committing nonviolent crimes such as a probation violation or disorderly conduct. What if we could put a stop to the injustice of bail? Is bail reform contributing to this mess, and how can we fix it?

The Underlying Principle Behind Our Bail System

After you’ve been arrested, you (a criminal defendant) should see a judge within one day or twenty-four hours. The judge should determine what happens next. One lenient option a judge can choose is to release you once you promise to return to court on a particular trial date. A less tolerant option involves you being detained until you make a plea deal or you get a trial verdict. If you are considered a flight risk, the judge may deny you a pretrial release.

While bail helps you remain free as you await trial, it takes a toll on your finances. A judge can choose from any form of bond when granting you bail. Factors such as the prosecutor’s recommendation and your financial resources come into play when your bail amount is being set.

How Bail Evolved Over the Years

Back in the days, you had to pay a particular fee if you failed to show up in court. The systems in place, during this time, allowed defendants to rely on their family members and friends provided they qualified for a pretrial release. Most of the individuals that qualified for the pretrial release were set free awaiting trial.

A trend characterized by the use of money bail started emerging in the 1800s. Courts used this form of bail because they believed it was a secure financial incentive for individuals accused of a crime to attend court proceedings at set dates. Today, the surety bail bond is the most common form of secured money bail used by courts. In this case, you will be asked to pay about 10 percent of the total bail amount to a bail agent who will cover your bail.

With surety bonds, the 10 percent fee (which is referred to as premium) is usually non-refundable. The bail bonds company facilitating this kind of service will agree to pay your full bail amount if you skip a future court proceeding. You should expect the bail agent to apprehend and surrender you to court in the event you miss a court hearing.

Cash Bail Vs. Bail Bonds

Courts allow defendants who haven’t been convicted of an offense to post cash bail, which is refundable once you show up in court for all proceedings. Most people prefer paying the 10 percent fee to access bail bonds since they can’t afford cash bail. Judges have been criticized over the years for setting cash bail that most individuals can’t afford to raise. 

Advocacy against judges setting unnecessary money bail began in the 1960s. Most of this advocacy work was focused on the fact that too many men and women were in custody before trial for failing to afford bail. People wanted clarity on the presumption of innocence doctrine, which considers you innocent until proven guilty. 

How Did We End up with this Mess?

The bail system has always been focused on helping people awaiting criminal conviction to get out of jail. On the other hand, the justice system promises to return the bail money in full once an accused individual shows up in court. The commercialization of bail made bail businesses to reap huge profits. However, these businesses are known to turn down clients for simple avoidable reasons.

Besides a bail guarantor making it difficult for accused people to get bailed out of jail, racial disparities are evident in our criminal justice system. To be precise, Hispanic and African-American people have higher chances of getting arrested, being issued bail, and less likely to afford it. Latinos and African-Americans also make up 50 percent of individuals in pretrial detention besides representing 30 percent of the country’s population.

The current bail system is known to drive people into pleading guilty even when they’re innocent. You may ask: why would an innocent individual plead guilty? I’d like you to imagine a situation where you’re locked up in a cell, and you can’t raise $500 to secure your release. As you’re in the cell, someone approaches you and tells you to plead guilty for you to get out.

Plea deals in the US are designed to look attractive to defendants but result in many people having a criminal record. Furthermore, the most vulnerable people in pretrial detention have been left with no other choice than to plead guilty. If these individuals would demand the court to exercise their right to a fair trial, they have higher chances of favorable outcomes.

The Congress Passing the Bail Reform Act

The Congress unanimously passed the Bail Reform Act back in 1966 amidst the heated debates on people being locked up for failing to raise bail. This act allowed people to be released under the lesser restrictive conditions or on their recognizance. The lesser restrictive conditions were supposed to ensure the future court appearance of defendants released from custody. Though the Bail Reform Act tried abolishing the use of cash bail, judges continued assigning excessive amounts of money bail.

A successive Bail Reform Act was passed in 1984, allowing federal court judges to have people detained for flight risk. The act also allowed people to be arrested if there was adequate evidence proving that they pose a serious threat to other people’s safety. The percentage of people released using money bail has significantly been increasing for the past thirty years. 

Putting the Blame on Bail Reformers

Bail reformers have always been on a mission to introduce misleading policies in our bail system. As they pass laws that make money bail ineffective, they deny thousands of destitute people freedom because they don’t have the cash to bail themselves out of jail. Bail reformers are also ignoring the fact that judges set bail hoping and expecting that the accused individual can’t afford it.

The truth is that most people who are unable to pay their bail are poor. Since judges believe that these individuals may be a danger to the public, their bail is usually set at a higher amount. There are judges denying defendants bail believing that they are dangerous. Their actions can be equated to the bail reform movement, which seeks to deny people bail based on their flight risks. Other accused individuals are being denied bail because the costs of releasing them were high.

Defendants’ Rights Vs. Public Safety

Bail reforms seem to value public safety over the rights of defendants. Since they fail to pick the right side, it’s difficult for them to realize that cash bail helps bridge the gap between defendants’ rights and public safety. They believe that money bail keeps more poor people in jail. What they fail to consider is that judges set cash bail to release more people.

Bail Reform Doing More Harm Than Good

Bail reforms are focused on improving political posturing rather than public safety. They are set on selfless and ill-conceived grounds trying to gauge a defendant’s release eligibility. Current bail practices are proving to be unfair since low-income defendants can’t post the same bail amount as the wealthy ones.

The goal of being granted bail is for you to be released as you await trial and prepare your legal defenses. In this process, the community is assured that you will be in court for trial. Bail serves as a mechanism meant to consider your interest in being set free and the community’s interest in being assured that you will make court appearances.

Incentives Used in Bail Reform

Bail reformers in states like North Carolina are pushing for initiatives such as issuing citations and using a public-safety checklist. They suggest that police officers should replace an arrest with a criminal summons, which requires a person to appear in court without going to court. With a public-safety checklist, defendants get released on their written promise to make court appearances. These initiatives seem biased and ineffective in helping accused individuals exercise their rights.

One reason bail reforms are a bad idea is that they seek to eliminate money bail and fail to help achieve safety and fairness in the modern criminal justice system. These reforms are suggesting that computer-based tools be used to decide who is set free and who remains in custody. It is quite unfair to rely on these so-called risk assessment tools to decide on a person’s flight risk. 

Various bail reform efforts focus on shrinking jails by having few people incarcerated. Their downside is that the fewer people to be detained are particularly racial minorities, low-risk defendants and poor. Using pretrial risk assessment tools to determine the type of defendants who can be released is an unfair way of dealing with the current bail system. 

Summing Up

Though our justice system promises to treat everyone equally, it fails to do so for the thousands of Americans sitting in jail because they can’t afford bail. What the lawmakers failed to consider when passing bail reforms is that people lose their homes, custody of their kids, and jobs in the few days they’re in custody. It’s time for the wasteful and discriminatory bail system to be changed to support equality.