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As incarceration rates in the U.S. remain among the highest in the world, many are calling for a reexamination of the justice system, starting with bail reform. Advocates for change argue that America's cash bail system disproportionately affects minorities and economically disadvantaged populations.

A bail bond is intended to ensure that a defendant appears in court, but bonds have become increasingly unaffordable. Reformers say it's unconstitutional for a person to be imprisoned because they can't afford bail. Do bail bonds begin punishing defendants before they're even found guilty? It's important to first understand how the current system works. 

How Does Bail Work? 

When a person is charged with a crime and has to appear in court, they're given a bail amount set by a judge. The bail bond's purpose is as collateral held by the court to ensure that the defendant appears in court. If the person wishes to avoid incarceration while waiting for their court appearance, they must pay the full amount up front or work with a bail bondsman to do so.

The bail bondsman works as a type of insurance agent for the court. By putting up the money for the defendant, the bondsman is pledging to pay the full amount of the bond if the defendant skips their court date. In return, the bail bondsman typically collects a premium from the client and that amount varies by state.

America's bail law is derived from English Parliament's Habeas Corpus Act of 1677. The Eighth Amendment of the United States Constitution borrows from this English law and states that "excessive bail shall not be required, nor excessive fines imposed."

The United States' Judiciary Act of 1789 later established that all noncapital offenses, or ones without the possibility of the death penalty, were bailable and that capital offenses would be left to a judge's discretion.

It took nearly 200 years for any other adjustments to be made to American bail law, but in 1966 Congress passed the Bail Reform Act intended to outlaw undue hardship and provide for the release of defendants as affordably as possible.

Upon signing this Act into effect, President Lyndon B. Johnson stated, "The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months, and perhaps even years before trial. He does not stay in jail because he is guilty... He stays in jail for one reason only – he stays in jail because he is poor."

Fifty-four years later, America is still dealing with an inequitable bail system which favors those of means and creates crippling hardship for those without. As lawyer and social justice champion, Bryan Stevenson, states, "We have a criminal justice system that treats you better if you are rich and guilty than if you are poor and innocent."

The Case for Bail Reform

Average bail amounts in America have climbed steeply over the past few decades. Over just a 14 year span, between 1992 to 2006, the average bail amount increased by 118% from $25,400 to $55,500.

During that same time frame, the amount of defendants released with no financial conditions while awaiting a court date decreased from 41% to 28%. A seemingly important factor in the nature of these statistics is the heavy lobbying power of the $2 billion-per-year for-profit bail industry. Money is being made en masse off of the premiums bail bondsmen collect.

Shima Baradaran Baughman, lawyer and bail expert at the University of Utah, explains, "The average savings of an American is under $400, so when you're given a bail amount that's over that, you're not going to be able to afford it. When a person's not guilty, they have the right to be free until they're found guilty."

Taxpayers spend $38 million daily to confine approximately 450,000 not-yet convicted individuals.

For those unable to afford their bail and forced into incarceration, their time spent behind bars can be devastating. Baughman continues, "If you are incarcerated, you are three to four times more likely to receive a sentence, and three times more likely to serve a longer sentence in jail. You lose your job offer, you lose your home, you lose your childcare. Even four days in jail is going to make you 35% more likely to recidivate. There are massive life consequences."

Baughman has been working to shed light on these statistics and bring about purposeful bail reform which brings back a presumption of innocence until proven guilty. One measure of reform involves police officers issuing citations rather than arresting an individual for certain low-level offenses or misdemeanors.

Citations, as opposed to arrests, simply give the individual a summons for a court date, avoiding the time and money that would be spent booking and imprisoning someone. This also saves the individual from unnecessary financial burden. 

Recent Bail Reform Measures

Some states are beginning to take notice of this call for bail reform and are taking action. In January of 2017, New Jersey eliminated cash bail. What was, at the time, a controversial move has led to fewer arrests for low-level crimes, plummeting jail populations, and a decline in crime in the state.

Individuals in Colorado facing petty crime charges will no longer have to pay cash charges to be released from jail. Alaska has also gotten rid of cash bail and is using a new algorithm in bail decisions to gauge whether someone is at high risk of missing a court date, or committing a crime while released.

Bail reform is picking up steam across the nation, but as it does, inherent issues which discriminate against minorities and the poor still persist. For example, questions on the survey used in Alaska – "Do you own a home?" and "Do you have a cell phone?" – favor those of means.

"When a person’s not guilty, they have the right to be free until they're found guilty."

Shima Baradaran Baughman

The questions may also be a little too "one-size-fits-all." Baughman describes, "Somebody who has a previous misdemeanor driving offense gets the same risk question as somebody who has a felony for rape."

Advocates for bail reform, like Baughman, hope to create a system where these inequities are eliminated altogether and pretrial release is the norm rather than the exception. In doing so, millions of taxpayer dollars could be saved. Research shows that taxpayers spend $38 million daily to confine approximately 450,000 not-yet convicted individuals awaiting their court date.

Bail reform is a complex and controversial matter, but protection against excessive bail is a constitutional right. A system which disproportionately punishes any one group in society is a system which needs to be fixed.

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