Should Bail be Eliminated?

There is a new movement in the U.S. surrounding cash bail. The question being raised is, should bail be eliminated? This is a complicated issue that involves many issues including homelessness, drugs and mental health, and basic fairness.

Here are ten issues surrounding the question: should bail be eliminated in the U.S.?

Bail is in the U.S. Constitution

The Eighth Amendment protects criminal defendants from excessive bail as well as freedom from excessive fines and cruel and unusual punishment. This restriction originates in England and pre-dates American independence. The language of the excessive bail clause of the U.S. Constitution is nearly identical to the excessive bail clause of the English Bill of Rights Act of 1689.

Importantly, the U.S. Constitution does not provide an explicit right to bail in all cases. Instead, it only prohibits excessive bail. This has two important consequences:

• Amount of bail: When bail is granted, it can only be large enough to secure the accused defendant’s appearance at trial and other court hearings. If the bail amount is disproportionate to that purpose, it is “excessive.”
• Denial of bail: If a prosecuting attorney wants a judge to hold a criminal defendant without bail, the prosecutor must give reasons for denying bail and the judge must agree with those reasons. If a judge holds someone without bail for no reason, a criminal defense lawyer can argue that withholding bail is “excessive.”

One reason underlying the question “should bail be eliminated” is the idea that these principles in the U.S. Constitution are not sufficient to protect the rights of criminal defendants who cannot afford bail, like people who are homeless, mentally ill, or addicts.

What is Bail?

Bail can be thought of like collateral. When you take out a loan, a lender will often require you to give it security in some property you own. For example, when you buy a new car, the lender will retain the title to the car so you pay off the loan. If you do not pay off the loan, the lender has the right to repossess the car.

Bail works the same way. When a judge orders you released with bail, you give the court a quantity of money as security with your promise to appear in court. If you do not appear in court, the bail money is forfeited, meaning that the court keeps it. If you make all your court appearances, however, your bail money — minus an administrative fee — is returned.

In essence, the bail money is collateral on your release. If you do everything you are supposed to do, your bail is returned in the same way that the title to your car is given to you when you make all your loan payments. Conversely, if you fail to appear in court, your bail money is forfeited in the same way that your car can be repossessed if you default on your car loan.

The bail amount is set by a judge at a bail hearing. You, a family member or friend, or a bail bond agent (more on this next) arranges payment directly with the court.

What is a Bail Bond?

A “bond” is a contract. A bail bond is an agreement between you, the court, and your bail bond company. The agreement contains promises from each party:

• The court agrees to release you until your case ends. Your release may come with conditions, but as long as you are not arrested for another crime or violate any of your release conditions, you remain free.
• You agree to post part of the bail (usually 10%), abide by your release conditions, and make all your court appearances.
• The bail bond company agrees to be financially responsible for the entire amount of your bail if you fail to appear. Consequently, you agree to allow the bail bond company to supervise you while you are free and repay them if your bail is revoked.

How Bail is Used by Judges

When a criminal defendant is arrested, the first court appearance usually occurs within a few days after the arrest. At that hearing, the defendant is notified of the charges and a judge determines whether the defendant should be held or released.

The judge’s options include:

• Release: For minor crimes, like minor assaults and minor drug charges, the judge may order the defendant released without bail. This is called the release “on recognizance” (ROR) and merely requires the defendant’s promise to return for all court appearances.
• Bail: For more serious crimes, a judge may allow the defendant to be released but only after paying bail. Bail amounts vary greatly, with the defendant’s financial situation and the seriousness of the crime factoring into the judge’s decision. Generally speaking, the more serious the crime and the wealthier the defendant, the higher the bail because the amount must be calculated to create an incentive to return for trial.
• Cash-only bail: If a defendant is a flight risk or the defendant’s release poses a risk to the public, a judge may order cash-only bail. This means that the defendant cannot use bail bonding to secure release. Rather, the defendant must either borrow cash or sell assets to raise the bail.
• Remand: If the judge finds that the defendant poses a serious risk of either fleeing or committing additional crimes if released, the judge can order the defendant held without bail.

Often, judges set a high bail or cash-only bail with the knowledge that the defendant will not be able to meet the bail requirement and will remain in jail until trial. However, this twisting of the purpose of bail raises the question — should bail be eliminated?

Benefits of the Bail System

For those who ask — should bail be eliminated? — there are a few benefits of bail to consider:

• Bail allows defendants to be released while awaiting trial. This can be critical so defendants can continue working and take advantage of any career opportunities that might arise while they are awaiting trial.
• Defendants who have family obligations, like taking care of children or elderly relatives, can be released during the months, or even years, while they await trial.
• Holding the bail money is very likely to encourage defendants to make all their court appearances.
• Upon disposition of their cases, defendants who submitted bail payments receive their money back. This is true for all defendants, including those who are convicted or take a plea bargain. Thus, no one is penalized by the bail system for merely being arrested since the bail money is eventually returned (although any fines might be deducted from the bail money before it is returned).

Problems with the Bail System

Despite the admirable intentions of the bail system, legal scholars do raise the question — should bail be eliminated? The bail system has many theoretical and practical problems including:

• Judges do not distinguish between the innocent and the guilty when setting bail. Thus, many innocent people are required to pay bail to be released from jail. If they do not pay bail, these innocent people remain incarcerated for months or years awaiting trial. As a result, fewer than 25% of inmates have been convicted of a crime, despite the legal principle in the U.S. that defendants are presumed innocent until the prosecution proves their guilt beyond a reasonable doubt.
• The bail system treats the working poor unfairly. According to a CNBC article, Most people have less than $9,000 saved and many work from paycheck-to-paycheck with no savings at all. Even working with a company that issues bail bonds, many working poor people cannot afford even the 10% to secure a bond.
• The bail system also treats people with health difficulties harshly. People with mental illness, substance addictions, and physical disabilities are often unable to work so they cannot save or raise money for bail. Advocates for the poor are among the most vocal in asking, “should bail be eliminated?”
• Bail has a disproportionate impact on racial minorities. Aside from the fact that minorities have a lower average income level, judges are 10-25% more likely to grant white defendants ROR than minority defendants. Similarly, judges are 10-25% more likely to require minority defendants to pay bail for their release or remand them without bail.
• The bail system inherently favors the prosecution because criminal defendants (including innocent ones) feel compelled to plea bargain just so they can begin serving their term and earn their release rather than being held indefinitely. This basic fact has many criminal defense attorneys questioning, should bail be eliminated.
• As a result, jails are full of people who are innocent but poor, homeless, mentally ill, substance abusers, physically disabled, or minority, while people who are economically advantaged, physically and mentally healthy, and non-minority are routinely released.

Negative Effects of the Bail System on Jails

In addition to potentially keeping people in jail rather than allowing them to contribute to their families and society, the bail system has also overwhelmed jails. This level of overcrowding has led even law enforcement to ask, should bail be eliminated? Under the bail system, the resumption is that most criminal defendants will be held until posting bail or bail bonds with the other options, ROR and remand, being applied rarely in the extreme cases.

This leaves most criminal defendants in jail while friends or family attempt to raise the bail money or arrange for bail bonds. In some cases, this means that criminal defendants spend several nights in jail.

However, many people have no support to assist them in raising the bail or are unable to raise enough money despite the efforts of friends and family. In these cases, this means that criminal defendants wait in jail until their trial even though they have not been convicted of any crime.

Most people would view this as unfair. Criminal defendants are routinely held in jail, deprived of their freedom to work, support their families, contribute to society, and generally improve their lives merely because they have been accused of a crime. Unfortunately, there is no way to compensate them for the lost time they spend in jail even if they are eventually acquitted at trial. This basic unfairness has even judges questioning, should bail be eliminated?

All of these factors contribute to jail overcrowding for no legitimate reason. In other words, if bail has been granted, a judge has determined that the defendant can be released. However, the defendant’s release is held up because the defendant, friends, and family cannot raise the bail money. In short, these defendants are not being held because they pose a flight risk or a danger to society — a judge has determined that they do not. Rather, they are being held simply because they lack money.

Alternatives to a Bail System

Some legal scholars answer the question — should bail be eliminated? — with a resounding “yes!”

Now, the system has a set bail schedule and starts with a presumption that everyone will be held for bail unless the charges fall at the very low end of the spectrum (and allow ROR) or the very high end of the spectrum (and require remand).

These legal scholars suggest replacing this system with a presumption that everyone will be ROR unless the judge finds a compelling reason to require the defendant to pay bail or remand without bail.

This can be thought of with this analogy: When you accept a job offer from an employment agency, the wages are set and you have no way to negotiate your pay. This is like the current system. Bail is presumed and you have no way to negotiate it.

Reforming bail is intended to eliminate the inflexible bail hearing in favor of a release unless the prosecution can present reasons to a judge to delay or deny release.

Benefits of a Presumption of Release

A presumption of release has many benefits:

• Relieve pressure on jails, prosecutors, and judges. With most criminal defendants being released after being arrested and booked, these potentially innocent defendants do not take up space in jails or take up court time with bail hearings.
• Level the playing field. Without being held in jail, criminal defendants can make better-reasoned decisions about plea bargains.
• Allow defendants to return to work. Even though they need to return to court for their trial, defendants can return to work in the meantime.
• Stop ruining lives. A person caught with a gun might spend years in jail awaiting trial if bail cannot be raised. A gun shop that sold that gun might be fined. In one case, the person’s life is ruined. In the other case, the business just pays the fine and continues on.

Test Cases in the U.S.

Several jurisdictions have tried bail reform with success. Washington D.C., New Jersey, New York, Philadelphia, and Harris County, Texas have applied a presumption of release. Under these programs, over 90% of criminal defendants are released without bail (either ROR or supervised release) and they achieve courtroom appearance rates between 80% and 90% — the same as defendants who pay bail. In other words, when criminal defendants are released without bail and required to check in with the court rather than bail agents, they are just as likely to show up for court.

These successes prove that the question “should bail be eliminated?” is not naive. In fact, it proves that with a thoughtful plan, bail can be eliminated with no adverse effects.