The United States is one of the only countries in the world with a cash bail system, but there are still some misconceptions surrounding the subject. The cash bail system exists because there is an assumption that people will not return to court unless there is a monetary incentive. According to the American Bar Association (How Courts Work), it is not a fine for committing a crime or being arrested. Bail is supposed to be something that motivates defendants to be present at their trial as well as all their pretrial hearings. There may sometimes be a processing fee, but the money is ultimately returned once the trial is over, regardless of whether someone is convicted innocent or guilty.
It is important to note that judges have a lot of discretion when choosing whether to require bail, thus cash bail is not the only option when someone is initially arrested. A judge may choose to release them on their own recognizance or simply deny them any bail at all. There are many factors that go into how judges may decide to release someone on their own recognizance with past record, longtime residence in a community, and employment being some of the factors carrying the most weight. However, not all these options are always offered to everyone. As noted by the Brennan Center for Justice, bail practices can be very discriminatory. Black and Latino men are often set a much higher bail than their white counterparts for similar crimes “by 35 and 19 percent on average, respectively” and are less likely to afford it (How Cash Bail Works). Further research shows young Black men are 50% more likely to be detained pretrial than white defendants. What may have been a well-intentioned system has developed into a two-tiered system that “criminalizes poverty and is a structural linchpin of mass incarceration” (The Bail Project: After Cash Bail).
Although poverty is not a crime, the cash bail system inadvertently puts a price on freedom; a price that many cannot afford. According to a report by the Prison Policy Initiative, the median felony bail bond amount is $10,000 which is representative of around 8 months income for the typical detained defendant. Some may argue that cash bail should just be made more affordable, but that hasn’t shown promise either. In Cook County for example, when required to set ‘affordable’ bail, judges were still setting it far beyond what people could pay (Monitoring Cook County’s Central Bond Court A Community Courtwatching Initiative The Coalition to End Money Bond, 2017).
The easiest way to think about the cash bail system is that it criminalizes poverty. Those with limited means are being subject to lifelong consequences before even being convicted of any crime. On the other hand, the wealthy are given the opportunity to wait for their court date from the comfort of their home and are thus given the opportunity to keep their jobs, build their cases, spend time with their families, and much more. Due to the time spent in detention and fear of losing more on the outside, defendants are inclined to take plea deals even when they are innocent. This then stays on their record and affects them in more ways than one down the line. We cannot continue to allow the system to subject indigent people to collateral consequences for crimes they were never truly convicted of. We cannot allow large industries to continue to profit off the detention and need of others. We must look towards incarcerating fewer folks and honoring their presumption of justice. No one should have to pay for their freedom.
References
“How Cash Bail Works.” 2020. Brennan Center for Justice. 2020.
https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works.
“How Courts Work.” 2019. Americanbar.org. 2019. https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/bail/#:~:text=It%20is%20not%20supposed%20to,states%20minus%20a%20processing%20fee.
“Monitoring Cook County’s Central Bond Court A Community Courtwatching Initiative The Coalition to End Money Bond.” 2017.
http://www.chicagoappleseed.org/wp-content/uploads/2018/02/Courtwatching-Report_Coalition-to-End-Money-Bond_FINAL_2-25-18.pdf.
Prison Policy Initiative, and Wendy Sawyer. 2020. “Mass Incarceration: The Whole Pie 2020.” \ Prisonpolicy.org. 2020. https://www.prisonpolicy.org/reports/pie2020.html.
“The Bail Project: After Cash Bail.” 2020. The Bail Project. August 13, 2020.
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