Student Perspective: The bail system
We asked college students from a variety of backgrounds and political stances to share their thoughts on the current bail system and state of incarceration in America. Their perspectives are below.
In many ways, it is laughable to think of the US legal system as wholly just. One of the most outrageous aspects is the current bail system and the associated bail-bond industry.
The for-profit bail-bond industry distorts the principle of guilt in exacting punishment: bond fees must be paid regardless of conviction. So when police practices like stop-and-frisk fuel pre-trial incarceration, parents find themselves paying exorbitant interest rates on loans to finance bail for something their child didn’t do.
Moreover, for those who cannot afford the price of freedom and justice, the effects of pre-trial incarceration are immense. A person could lose their job, their home, or even custody of their kid for spending a night in jail—effects that have been well documented. Surprisingly, a recent analysis by the Journal of Legal Studies found a causal link between money bail and conviction: “Many defendants appear to be found guilty simply due to an inability to pay money bail, indicating two systems: one for the rich and one for the poor.” Unfortunately, this carries explicit racial implications as a report in Criminology notes, minorities are twice as likely to be unable to pay bail, magnifying the consequences of a bail system for disadvantaged groups.
Some could defend the bail system as crucial to ensuring people show up to court, but this line of thinking ignores effective alternatives that avoid the specific harms of the for-profit bail-bond industry and discrimination issues. One key example is unsecured bonds—bonds that are triggered only if the defendant fails to appear in court. A report by the Pretrial Justice Institute found that unsecured bonds are just as effective as, if not better than, secured bonds at meeting goals of public safety, court appearance, and “fugitive-return” for defendants who have failed to appear. It is thus important to recognize the severe inequities of the current system, and pay attention to viable opportunities for change.
One of the main economic injustices within American society today is the criminal bail bond system. The inefficiency of the courts in combination with high court calls and backlog make waiting in jail a long and frustrating ordeal. Usually, the people who can post bail are people of money. And this unjustly targets the middle and lower class who simply cannot afford a $20,000 bond for a minor crime. There need to be viable alternatives, like mandatory service requirements for example.
The criminal justice system needs to be punitive, but it also needs to be rehabilitative. Disenfranchising a citizen for a minor crime through their economic ruin over a bond–and subsequent need to pay for a bond company's rate if they can't afford it–is a great societal injustice.
In short, the American criminal justice system is broken. This brokenness is rooted in systemic shortcomings, like the war on drugs and related policy disasters, as well as deep cultural issues, like racism and discrimination. People of color are disproportionately represented in American prisons. And beyond racism, the sheer magnitude of the American prison population is disheartening. This simple fact should make us all collectively cringe: “The United States makes up about 5% of the world’s population and has 21% of the world’s prisoners."
Obviously this is only the tip of the iceberg, but the truth is we need to fix our criminal justice system, now.
Isabelle De Brabanter
The maxim “innocent until proven guilty” is perhaps one of the most recognizable and significant cornerstones of American criminal justice jurisprudence. At its core, it reflects the Framers’ skepticism of a strong, centralized police state. Indeed, Founding Fathers sought to edify certain inalienable rights, retained even by those accused of heinous crimes, so as to affirm the natural rights afforded to all citizens. Among said rights includes the right to be free of “excessive bail” in criminal proceedings per the Eighth Amendment to the United States Constitution.
Yet, the present state and realities of the criminal justice system—troves of people behind bars awaiting trial without any formal conviction, low risk offenders relegated to general population within jails and prisons, the disparate economic impact on impoverished citizens awaiting trial—have taken us woefully far from the Republic envisioned by the Framers. According to the National Review, “400,000 people sit behind bars in local jails around the country, not yet convicted of any crimes.” The same article goes on to cite findings from a 2013 Drug Policy Alliance report “that nearly 75 percent of the people in New Jersey jails were awaiting trial […] 40% of those people were detained solely because they could not afford money bail.” The rate of incarceration for pre-trial detainees rises to nearly 60% across the United States. The high rate of detention links back to failings in the “cash-bail” system that systematically affects low-income individuals who cannot afford to post bond payments in light of financial inhibitions.
Additionally, such high rates of pre-trial incarceration pose significant fiscal drawbacks. The United States spends nearly $14 billion in taxpayer dollars annually to keep “mostly low-risk, nonviolent people in jail before their trial.” Detaining otherwise low-level offenders leads to higher rates of recidivism and dampens prospects for societal reintegration upon release.
Likewise, disparate impacts on impoverished citizens also pose significant constitutional questions, specifically with regards to the Fourteenth Amendment’s Equal Protection Clause and the Eighth Amendment’s Bail Clause. The Supreme Court famously opined in Bearden v. Georgia that the Constitution proscribes “punishing a person for his poverty.” Justice Clarence Thomas himself, likewise affirmed lower court rulings that found a constitutional violation “in jailing poor people in Houston accused of low-level crimes simply because they could not afford their freedom.”
Federal and state legislatures need to reflect upon the significant costs of the existing bail system that punishes poverty and undermines the core principles of our Founders who so tirelessly fought to secure our natural rights to Due Process and equity under the law.