Why The U.S. Should End Cash Bail

On any given day, 60 percent of the people housed in jails across the United States aren’t there because they have been found guilty of a crime, but because they are awaiting their day in court. You know the whole “innocent until proven guilty” thing—the premise that our “just” society won’t penalize anyone unless their guilt has been proven beyond a reasonable doubt? Well, that whole idea doesn’t really apply to pretrial detention. The Justice Policy Institute, a nonprofit organization that promotes sound research and analysis on the U.S. justice system in pursuit of reform, has published a new paper outlining why the U.S. bail practices should be done away with altogether.

Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail” looks at the flaws of the American bail system, a system, they say, that has perverted the pretrial justice process.

Bail is, in essence, a promise to return to court. When you are arrested, a judge can allow you to be released on this promise pending any future court hearings. Sometimes they allow you to be released on your word (own recognizance) and others you are required to put up money as a collateral (cash bail). Cash bail is used in 70 percent of felony cases. This means, your ability to pay determines your freedom.

We often talk about the U.S. prison system, but neglect the smaller, county and city-level jails. It’s these institutions that house people convicted of misdemeanors, but mostly those awaiting trial, and they are bursting at the seams. Since 2000, U.S. jails have operated at an average of 91 percent capacity, at an incredible cost to taxpayers.

The people who are held in a jail before trial are accused of everything from DUI to murder. But, those who are held because they can’t make bail all have one thing in common—a lack of resources.

Who has an extra several thousand dollars saved up in case of a criminal charge? Who has a relative with this kind of money just sitting around? Those people that have the resources, use them. Those people are middle and upper class citizens, and while a cash bail can hurt them too (depending on the amount), it’s nothing like what it can do to an already-poor defendant. Removed from their family, and unable to make bail, the defendant often takes the household’s main source of income with them, causing their family and community to suffer in their absence—all while being “suspected,” not convicted, of a crime.

The number of Americans accused of crimes and being required to post cash has risen dramatically. Fewer and fewer people are being released on their own recognizance—around 32 percent fewer from 1992 to 2006. The use of commercial bonds —those guaranteed by a bond agency—has risen 32 percent. Cash bail is an industry.

The amount required for release has similarly risen. The average felony cash bail was $40,000 in 1992 and is $90,000 in 2006—and this isn’t because Americans have become significantly wealthier.

The pretrial detention system has created a modern system of pauper’s prisons. Those who don’t have the money to buy their freedom are left languishing in jail until they have their day in court. This could be months or even years down the road—that “fair and speedy trial” thing doesn’t always apply either. People are held for weeks and months for bails as low as $100, according to the Justice Policy’s paper.

Some people don’t have this kind of extra money. So, does that mean they shouldn’t be afforded the same type of treatment as the wealthy under the U.S. justice system?

The Justice Policy is calling for an end to the cash bail system, and we support that. However, in the meantime, if you are suspected of a crime and bail has been denied or set to high, your local criminal defense attorney may be able to help. Let us put you in touch with someone today.

About David Matson