Bail is a crucial component of the criminal justice system in the United States and around the world. Ask a criminal justice attorney, and they’ll tell you that concept of bail aims to balance the rights of accused persons with interests of justice and public safety.
However, bail practices, especially cash bail, have come under increasing scrutiny and criticism in recent years. Reforming bail to create a more just pretrial system is an important goal of criminal justice reform efforts.
What is Bail?
Bail is a payment of money or property that allows a defendant awaiting trial to be released from jail. Judges set bail during arraignments to ensure the defendant returns for future court appearances. If the defendant fails to appear, they forfeit the bail money.
Bail practices vary widely across the United States. Bail can be set based on the type of crime, perceived flight risk, and ability to pay. Most often, bail is a cash amount that must be paid in full for release. Other options include releasing defendants on their own recognizance (without payment) or under supervision.
The Purpose of Bail
Setting bail aims to balance the legal presumption of innocence with public safety concerns. The 8th Amendment prohibits “excessive bail.” Courts seek bail amounts high enough to ensure the defendant’s appearance in court, but not so high as to constitute punishment before conviction.
Bail also provides pretrial freedom for defendants who can afford it. Without bail, accused persons must remain jailed pending trial, which can infringe on rights and livelihoods. Also, bail enable defendants find legal assistance from proffesionals such as Rose Legal Services
How Cash Bail Works
For defendants who cannot afford the full bail amount, the commercial bail bond industry provides a way to meet bail. Bail bond companies will post the full bail amount for a non-refundable fee, usually 10% of the bail. The defendant will owe the full bail amount if they fail to appear in court.
Bail bond companies are for-profit intermediaries in most states’ bail systems. Defendants who use bail bonds only pay a fraction of the total bail set by the court. But bail bond companies collect millions annually in non-refundable fees nationwide.
The Growth of Cash Bail and Commercial Bonds
Cash bail and commercial bail bonds have become the predominant way defendants obtain pretrial release. In 1990, only 24% of pretrial releases nationwide involved financial conditions. By 2009, this number rose to 41%. By 2015, 45% of pretrial releases included cash bail requirements.
As cash bail rates increased, the commercial bail bond industry prospered. There are now around 25,000 bail agents nationwide who post bonds through 3,200 bail bond companies. This multi-billion dollar industry profits from cash bail systems.
Concerns About Cash Bail
Cash bail systems cause serious inequities in the criminal justice system. Whether a defendant stays in jail pending trial often depends on their ability to pay. Even with bail bonds, low-income defendants struggle to come up with the 10% fee.
About 70% of people held in local jails have not been convicted and are legally presumed innocent. Many remain jailed pretrial solely due to inability to pay bail. On an average day, nearly 500,000 people are held pretrial in America’s local jails.
Defendants who cannot afford bail face hurdles that can incentivize guilty pleas. Jailed defendants tend to lose jobs, housing, access to services, and contact with families. The prospect of lengthy pretrial detention provides strong motivation to plead guilty early, even if innocent.
Cash bail also disproportionately impacts communities of color. Black and Hispanic defendants are more likely to have bail set and less likely to be able to pay. Cash bail exacerbates racial disparities at every level of the criminal justice system.
Alternatives to Cash Bail
Bail reform advocates promote alternatives to cash bail to reduce inequality in pretrial systems:
- Release on personal recognizance – No payment required, released based on promise to return
- Unsecured bonds – Set bail amount but only pay if fail to appear
- Pretrial supervision – Regular check-ins in lieu of cash bail
- Pretrial risk assessments – Evaluate risk instead of setting monetary bail
- Deposits or partial payments – Allow defendants to pay 10% of bail directly to court.
These options curb reliance on cash bail and the injustices it propagates. Moving away from cash bail can help shrink jail populations while still ensuring court appearances.
Bail Reform Efforts
In response to social justice concerns, bail reform efforts have gained momentum across the U.S. Some states, including New Jersey, have overhauled cash bail systems entirely. Others have limited cash bail for low-level crimes. Major cities like Chicago now use risk assessment tools instead of preset bail schedules.
Despite progress, implementing bail reforms faces significant hurdles. The bail bond industry lobbies to protect its profits from cash bail. Law enforcement resists releasing defendants they consider dangerous or high-risk. Politicians fear being blamed for crimes committed by those released pretrial.
Ongoing grassroots activism and policy advocacy promote equitable pretrial justice. Public education on injustices linked to cash bail builds support for thoughtful reforms. Although cash bail persists in most states, the tide is turning toward a more humane and just system for accused persons awaiting trial.
Conclusion
Setting bail aims to balance the legal presumption of innocence with public safety concerns. The 8th Amendment prohibits “excessive bail.” Courts seek bail amounts high enough to ensure the defendant’s appearance in court, but not so high as to constitute punishment before conviction. According to Rose Legal Services in St. Louis Bail also provides pretrial freedom for defendants who can afford it.
Without bail, accused persons must remain jailed pending trial, which can infringe on rights and livelihoods. Being free on bail also enables defendants to seek for legal assistance from Van Nuys Criminal Defense Lawyer, which is a fundamental right.
