Cash Bail

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

8th Amendment to the Constitution of the United States of America

What is excessive bail?

For the quick, lazy definition of cash bail, we can resort to Wikipedia: 

Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they comply with the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.

In some countries, especially the United States, bail usually implies a bail bond. This is money or some form of property that is deposited to the court by the suspect, in return for the release from pre-trial detention. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime of failure to appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded.

Scott Hechinger, senior staff attorney and director of policy at Brooklyn Defender Services, recently tweeted some statistics about cash bail. I'll summarize his statistics, but the thread is worth a read.

• A judge spends about one minute, on average, deciding to detain people pretrial on bail
• 87% of Brooklyn Public Defender clients cannot afford their bail
• 500,000 - or about ¼ of the 2.3 million people currently incarcerated - are only incarcerated because they cannot afford their bail
• 95% of clients return to court without any financial incentive
• 95% of all convictions are from plea deals
• Someone in jail is 9 times more likely to plead guilty than someone who can post bail

According to the definition of bail, it's supposed to be used to ensure the defendant's return to court. But what is actually happening is that bail is being used to coerce guilty pleas. The median income in the United States in 2015 was $56,516; according to Prison Policy the median income of a person incarcerated without bail $15,109 (before incarceration.) The average bail amount for felony cases  was $55,400; data is scarce for misdemeanor cases, but Human Rights Watch found that in the 23% of cases where defendants were required to post bail in New York City, 72.3% of them were set at $1000 or less. However, “Despite [this] relatively low bail amount, the overwhelming preponderance of defendants required to post that bail amount were jailed because they could not do so.”

The disparity faced by the poor is huge. A wealthy person accused of a crime can easily pay any amount set; most of the people who are incarcerated in jails, however, are poor - they can't hope to pay the bail amount.

So they sit in jail, waiting for their hearings. While they sit in jail, they lose their jobs, their housing, their vehicles. Because of these pressures, they will often plead guilty simply to get out of jail - the sentence of probation or time served, even with a criminal conviction, is easier to bear than the weeks or months incarcerated.

Bail is being used as a punishment, or as an incentive to plead guilty. This is not how bail was intended to be used. It's not how it's been used historically, either- an article for the Harvard Law Review, citing a Vera Institute study, states that only a generation ago, most people charged with a felony were released on recognizance.

A person with a set bail has already been determined to not be a threat to the community or a flight risk by a judge. The only thing keeping them incarcerated is simply a lack of money to pay bail. And requiring people who have not been found guilty of a crime to pay for their freedom is not justice.

What, then, should we do with the cash bail system? Should it be abolished? Some states are attempting this, and it is already drawing criticisms from organizations pointing out that without a cash bail option, judges are defaulting to simply holding people with no bail at all. This is accomplishing the opposite of what it was intended to do.

And so I do not argue that cash bail should be eliminated, because the financial incentive to return to court is not, on its face, unjust. It is the setting of amounts which most people cannot ever hope to pay which is unjust.

Any cash bail which exceeds the defendant's ability to pay is excessive.