Why bail is bad

Our bail system is nothing more than an expensive trap for the poor. So how can we fix it? The most popular replacement model revolves around risk-assessment algorithms and light supervision. (Mitchell Haindfield/Flickr Creative Commons)

If our criminal justice system is a rotten tree, then bail is the blight eating away at it’s roots.

Bail is a sound idea in theory, acting as an incentive for defendants to appear in court. But, as Robert F. Kennedy said, “In practice… bail has become a vehicle for systematic injustice.” Why is that? And why should law-abiding citizens care? For two simple reasons: bail is fundamentally classist — and a strain on taxpayers.

In the same testimony, RFK offered this wisdom: “The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail.” He was right. Poor Americans are often unable to post bail, and must stay in prison for extended periods of time. But prison stays can be disastrous. In many jobs, missing weeks — even days in some cases — is grounds for termination. Defendants also risk losing their housing, or in some cases, custody of their children. And that’s just one angle. Research has demonstrated that short periods of incarceration can provoke serious mental health issues.

If a defendant wants to avoid these outcomes, they have two options. First, take a plea deal. Although America loves to tout its system of trial by jury, the vast majority of cases are settled this way, particularly for defendants who can’t afford bail or expensive lawyers. But plea deals saddle defendants with criminal records, which can affect access to employment, housing and education.

So many turn to the second option: The predatory, for-profit bail bond industry. Bail bond companies will post bail for a defendant in exchange for a fee. When defendants can’t afford the fee, bail bond companies loan the money. Interest rates are incredibly steep — illegal, some would argue — and the companies have an incredible amount of latitude to collect. A 2018 New York Times investigation found bail bond companies are often allowed to search their clients homes and cars, comb through private medical records or demand weekly check-ins.

It’s also important to note that the crushing weight of bail falls heaviest on black and Hispanic Americans. When arrested for the same crimes, black and Hispanic defendants are more likely to be issued bail, and consistently have their bail set higher, than their white counterparts.

But why should law-abiding citizens care? Simple: Bail is a leech which sucks money out of government coffers and local communities. Nearly half a million Americans, most of whom are deemed low-risk, are being held in pretrial detention on any given day. The price tag is astounding: $14 billion a year in direct costs to local governments, as well as over $100 billion in collateral costs to communities, families and individuals. But it doesn’t end there: people who spend time in jail, even in the pretrial process, are significantly more likely to commit future crimes — and incur further costs.

Our bail system is nothing more than an expensive trap for the poor. So how can we fix it? The most popular replacement model revolves around risk-assessment algorithms and light supervision.

In Washington D.C., where this system has been in place for three decades, 95 percent of defendants are released without bail, and about 90 percent of released defendants return for trial (which is in line with rates from states that do have cash bail systems). But despite the promise of this policy, advocate groups have been wary to declare it a roaring success. Risk-assessment algorithms — which rely heavily on criminal records — can be skewed against black and Hispanic defendants, who are more likely to have a record in the first place.

Maryland and California, two states which have moved away from cash bail in recent years, have faced criticism as well. In Maryland, for instance, the number of defendants held without bail has increased as cash bail has been phased out. Advocates say this is a result of a poorly designed system. There are other solutions which emphasize text reminders and access to transportation or childcare.

We know bail is a classist, blood-sucking system, but developing a replacement system is another task altogether. There is no silver bullet — but getting rid of bail is a good start.


Harry Zehner is a staff columnist for The Daily Campus. He can be reached via email at harry.zehner@uconn.edu.