By: Robert Bryson

In the United States, bail refers to a system wherein a suspect is conditionally released from custody upon the surrender of payment of money or pledge of property to the court. The funds are then refunded when the suspect returns to court for their trial. If the suspect fails to return, the bail is forfeited, and the suspect could be brought up on additional charges for failure to appear in court. It is designed to incentivize suspects who are released from pre-conviction detention (i.e., awaiting trial) to show up for their hearings and trial. Bail is guaranteed as a right under the Eighth Amendment and the Bail Reform Act of 1966.[1]

The application of bail varies from state to state, but in assessing whether to grant bail and how high bail should be set, courts can generally consider: (1) ties to the community; (2) family; (3) risk of flight; (4) dangerousness to the community; (5) financial interests; (6) criminal history; (7) employment history; and (8) history of appearances in court, among other factors.[2][3] Certain suspects are excluded from bail. For example, those accused of violent crimes, severe drug-related and gang charges, and other serious crimes will not receive bail.

Criticism of Money Bail

The money bail system disproportionally punishes lower-income individuals. Money bail makes the pre-conviction release a privilege for those who can afford it and punishes those who cannot. Furthermore, the burden of repayment is much higher on low-income families.[4] Higher-income individuals can afford to pay the entire bailout of pocket, whereas individuals with fewer financial resources are forced to rely on bail bondsmen who loan them the money and charge exceedingly high fees.[5] So, in addition to punishing individuals for being poor, it also charges them more money because of it.

Furthermore, denying bail has a direct impact on a suspect’s case. Incarcerated individuals are significantly less able to develop their case and work with their attorney; they cannot meet with witnesses, review evidence, or assist in preparing argument or testimony in the same way as a free individual.[6] Incarcerated individuals may only see their attorney during visiting hours, and the ability to exchange information is limited. Therefore, individuals who are denied bail or are unable to “make bail” are convicted more frequently.

Finally, critics argue the system creates perverse incentives concerning the application of justice. The money bail system created a billion-dollar bail bond industry which profits exclusively from individuals who are charged, unable to pay their bail and forced to rely on a bail bond. The bail bondsmen system encourages the government, courts, and industry to (perhaps not encourage) create more incarcerated individuals to ensure the industry remains afloat. In fact, there are several examples of bail agents paying kickbacks to law enforcement officers and judges to receive favorable bail treatment.[7] This is not to imply that all judges and law enforcement officials are corrupt, only to point out that a system which profits on individuals (1) getting arrested and (2) being forced to pay money to obtain release, encourages the wrong character traits.

Bail in California

On August 28, 2018, Governor Jerry Brown signed SB 10 into law which will fundamentally reshape California’s bail system. Before SB 10, California utilized a bail schedule. Judges were directed to review the schedule and issue bail accordingly while considering the suspect’s criminal history.[8] California is joined by New Jersey, Alaska, and the District of Columbia in abolishing the cash bail system.[9][10][11]

As of October 1, 2019, California will utilize a “risk assessments” system to determine when individuals are released and under what conditions – no cash bail.

“A person whose risk to public safety and risk of failure to appear is determined to be “low” would be released with the least restrictive non-monetary conditions possible. “Medium-risk” individuals could be released or held depending on local standards. “High-risk” individuals would remain in custody until their arraignment, as would anyone who has committed certain sex crimes or violent felonies, is arrested for driving under the influence for the third time in less than 10 years, is already under supervision by the courts or has violated any conditions of pretrial release in the previous five years.”[12]

The California system already has plenty of critics. The American Civil Liberties Union of California, an original sponsor of the bill, withdrew support citing several provisions that give judges greater discretion and a process which allows prosecutors to file for “preventive detention” if the prosecutor believes no conditions would ensure public safety.[13]

Despite the flaws in the bill, it is a marked improvement over the previous system which was based on a literally “pay-to-play” application of justice. The new system is unlikely to eliminate racial and ethnic bias in bail rulings. However, it is a positive step and one that can be reformed and revised with future amendments.

[1] https://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution

[2] https://www.gpo.gov/fdsys/pkg/STATUTE-80/pdf/STATUTE-80-Pg214.pdf

[3] https://www.fjc.gov/sites/default/files/2012/BailAct3.pdf

[4] http://www.americanbailcoalition.org/wp-content/uploads/2016/01/Zweig-Note.pdf

[5] https://www.aclu.org/blog/smart-justice/we-cant-end-mass-incarceration-without-ending-money-bail

[6] https://core.ac.uk/download/pdf/46712988.pdf

[7] http://www.justicepolicy.org/uploads/justicepolicy/documents/_for_better_or_for_profit_.pdf

[8] https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=https://en.wikipedia.org/&httpsredir=1&article=1013&context=bjcl

[9] https://www.pbs.org/newshour/show/new-jersey-eliminates-cash-bail-leads-nation-reforms

[10] https://psmag.com/news/alaska-ends-cash-bail

[11] https://www.dcbar.org/about-the-bar/news/dc-no-bail-release.cfm

[12] https://www.sacbee.com/news/politics-government/capitol-alert/article217461380.html

[13] https://www.sacbee.com/news/politics-government/capitol-alert/article217031860.html