To Build a Fair Justice System, End Monetary Bail

In the United States, one of our most sacred legal principles is being “innocent until proven guilty.” This principle establishes a system of fairness and rights for the accused; making it so that the accused do not bear the burden of proving their innocence. This asserts that it is better for society and the justice system to have the potential of a guilty person being released than to have an innocent person incarcerated. 

This principle, however, is repeatedly violated by the practice of monetary bail in the United States, which leaves presumed innocent people in jail simply because they can’t afford bail.  This time in jail could lead to irreparable damage to the individual and their family – depriving them of their freedom, forcing a plea of guilt due to lacking options, ripping away future economic opportunities, and separating them from their children. 

It is time to abolish monetary bail and establish new standards for judges to determine pretrial release and its conditions — thus reestablishing the presumption of innocence in our justice system.

The Classist Cycle of Injustice

Under a monetary bail system, money or property is pledged to the court in order to be released from police custody before a trial, following the judge’s decision on the severity of the crime and how high bail should be set. Sadly, due to many Americans’ inability to afford bail, presumed innocent people will often be stuck in jail awaiting a trial. Less than 25% of people held in local jails right now have been convicted of a crime. By this data, over 460,000 presumed innocent people are held in jail on any given day. So many of these presumed innocent people are stuck in jail simply because they don’t have the resources to get a fair shake in our justice system. In many places, courts follow bail schedules — amounts that are based on the charge — without taking into account details of a person’s case or their ability to pay. 

Bail amounts vary widely, with a nationwide median of around $10,000 for felonies and less for misdemeanors. This is well above the available resources of most Americans. Even the lower amounts are more than most people can pay, and many face time in jail for lack of as little as $500 or even $250. There are bail bonds in most states — providing loans to pay bail — but these often impose a great debt upon the accused for the fee that the bail bondsman takes. For those who can’t afford bail, they are essentially given two options to choose from: (1) wait in pre-trial detention for an extended period of time and face all of the issues that come with imprisonment, or (2) agree to plead guilty, even if you didn’t actually commit the crime, to gain your path to freedom faster. 

A plea bargain is a legal agreement in which the defendant agrees to plead guilty in order to receive a more lenient sentence. The vast majority of felony convictions are now the result of plea bargains—some 94% at the state level, and 97% at the federal level. Estimates for misdemeanor convictions run even higher. Why is this a problem? A plea of guilt via the plea bargain, even if truly innocent, brands its victims with an everlasting mark that can cripple their economic and social standing. Many face extreme difficulty in finding employment due to this new mark of guilt on their record. For those who do manage to find a job, studies show that they’ll likely see their annual earnings reduced by more than 52% when compared with their peers. The less fortunate, presumed innocent people who choose the path of denying a plea bargain in order to await a trial and clear their name face many more struggles in jail. 

One major group of people who endure the pain of pretrial detention is families. At least 5 million children, or about 7% of American youth, have had an incarcerated parent with black, poor, and rural minors being disproportionately affected. Many parents, especially single mothers, who are presumed innocent but held in pretrial detention, are left unable to support their children both financially and emotionally. Among mothers who lived with their minor children prior to their arrest, nearly all of them reported providing financial support to the family. This loss of financial support could in turn impact the family’s housing stability, the child’s living arrangement, and the child’s school stability and psychological health. 

Children with an incarcerated parent are more than three times as likely to suffer depression and behavioral problems compared to kids without an incarcerated parent. There is a clear problem in our justice system when people who haven’t even been convicted of a crime are being separated from their children and being subjected to undue harm because of an inability to pay bail.

With all of these problems accused individuals and their families face, it is clear that the system of monetary bail is by no means fair, nor reasonable in addressing criminal charges. Monetary bail is a practice that diminishes the principle of the presumption of innocence, and it should accordingly be abolished. There are many questions that should be asked and situations examined when imagining a justice system without monetary bail. The feasibility of abolishing monetary bail, as well as the creation and implementation of an effective replacement to monetary bail must be examined. 

The Costs of Injustice

When determining the feasibility of abolishing monetary bail, two main factors must be considered: the rates of people returning for their trials and the potential taxpayer cost of ensuring a return to trial. Those who support the practice of monetary bail have argued that bail is an effective system because the money that is temporarily given by the accused to be held by the court acts as an incentive to return for their hearings. It is assumed that those who don’t have a purely financial stake in returning to court won’t bother coming, but what about the vested interest the accused have in simply clearing their names of charges? Couldn’t that in itself be a financial incentive for many, since the prospect of a guilty sentencing could equal a deprivation of future economic opportunities? An organization known as “The Bail Project” helps in demonstrating the results of removing the court-imposed financial “incentive” of bail, by using its funds to pay bail for the accused without demanding interest. 

The results? Their clients appear for over 90% of their court dates, with the other 10% of missed dates resulting from unavoidable schedule conflicts involving work and child care. Both sides of the debate over ending monetary bail have an interest in making sure that people return to their court hearings – the reality is that under a post-monetary bail system, the rate of return would be virtually the same, but with the addition of greater protections for the presumption of innocence.

Another component of the abolition of monetary bail and the feasibility of it is the implementation of new pretrial services and its effect on government taxes and spending. In order to ensure a proper transition towards a non-monetary bail system, there must be better pretrial services to accommodate defendants formerly dealt with by pretrial detention operations. The services would include various check-ins by pretrial supervision officers, reminder calls and texts for upcoming court dates, and potentially even transportation services to hearings. These services are not inherent to the abolition of monetary bail, but in order to maximize the efficiency of the system in regards to cost and return rates to trials, they should be instituted. Proponents of monetary bail will argue that an institution of new government programs following an abolition of monetary bail would only increase the spending burden on the taxpayers. 

The effects of new policy on spending are something that must be seriously considered, but not the determining factor in deciding on the passage of necessary policy. Thankfully, the abolition of monetary bail and the subsequent implementation of pretrial services would be both more efficient and cost-effective than the status quo of widespread pretrial detention faced by those who can’t afford bail. 

The Administrative Office of the U.S. Courts found that pretrial detention for a defendant was nearly 10 times more expensive than the cost of supervision of a defendant by a pretrial services officer in the federal system. With this in mind and the previously stated number of pretrial detainees being around 460,000 people, it can be assumed that a transition away from a system that penalizes the poor and holds them pretrial can also help in forwarding the universally appreciated principle of avoiding excessive and unnecessary government spending.

Weighing the Solutions

Washington D.C., California,  New York, New Jersey, and Alaska have all implemented different approaches to abolish bail to some degree. Within all of these states, there is the presence of a replacement system for bail schedules often known as “risk assessment tools.” Risk assessment tools are algorithms that require the data of the defendant’s past to be entered in and assessed to determine the likelihood of the defendant not showing up in court, committing new crimes, and causing further risk to an individual or the community. These tools were implemented by many states in order to help provide judges with helpful, objective data so that decisions for pretrial release and conditions can be made from more than just a hunch. 

In Washington D.C., this system has been in place for several years and has shown promising results in granting pretrial freedoms, while properly determining the flight risk and minimizing the rate of re-arrest before trial. In the state of New York, bail has been eliminated for a majority of non-violent crimes, and in determining pretrial release and conditions  judges “may only consider a person’s risk for failing to appear in court, and not their general risk to public safety.” 

This approach by New York essentially gives less discretion to the judges in using risk assessment to determine release, but it still allows the use of the tools. New York’s approach has faced a lot of backlash from law enforcement, who worry that some defendants released under the new rules will continue to commit crimes, and a few may try to intimidate potential witnesses since such critical decisions are taken away from judges. 

Opponents of relying on risk assessment tools have argued that the criminal justice system has problems caused by racial and economic biases, and to rely on data from an old system plagued with injustice would only continue injustices in the new system. For example, if an innocent person faced the pressure of monetary bail and decided to plead guilty to avoid being stuck in jail awaiting trial, a new system of risk assessment would take into account their past guilty plea and lower their chances of gaining their pretrial freedoms.

From examining these different systems of a post-monetary bail justice system, it is clear that each approach has its ups and downs. However, the implementation of these different approaches in various areas throughout the United States sheds light upon what a more desirable approach could look like and how it can be implemented. 

Monetary bail should be eliminated for non-violent offenses for the most part, but the judges should be given the ability to examine the recent criminal records of the defendant in order to prevent a continuous process of “catch, release, and crime” exploited by repeat offenders. Furthermore, in determining the risk of the defendant, there must also be a system of examining the biases and impact of former discriminative policies, allowing the defendant to contest previous charges and guilty pleas.

The Best of Both Worlds for the Path Forward

The proposed solution incorporates the positive aspects of both the D.C. and New York models while addressing their various failures. The D.C. system aimed to address the concerns of both the accused, the alleged victim, and law enforcement in granting a limited amount of pretrial liberties decided in part by the risk assessment algorithms. This ultimately helped in lowering the prison population, but it also trapped some people in a cycle of incarceration by reinforcing their past convictions that may have been forced by the systemic injustices of monetary bail. 

The New York system aimed to maximize the benefit to the accused individual by giving them numerous protections from risk assessment algorithms, strenuous release conditions, and judge decisions to suspend pretrial liberties to a degree. This system did help in guaranteeing greater freedom for the accused, and a relief of the economic pressures felt by monetary bail, but it also opened up the possibility of greater injustice being done to the public. 

Such a restrictive system upon the justice system could actually hinder New York’s goal of helping guarantee greater rights for the accused because lacking accountability for repeat offenders could lead to the general public turning against bail reform altogether. That is why a new approach would be more beneficial, as it would acknowledge the concerns and the safety of the general public, and give the judges more freedom and resources to determine the wiseness of releasing a certain defendant. 

This solution, as opposed to other already established solutions, would be the best way of moving forward with a post-monetary bail justice system, as it would guarantee greater protection of the principle of the presumption of innocence, while also taking into account the practicality of its impact upon society and the feasibility of its implementation.

Photo by George Hodan

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