Photo credit: “Sanchez Bail Bonds” by Randy Heinitz is licensed under CC BY 2.0
Across the United States there have been growing calls in recent years to reform the bail system that has existed for centuries. The bail system as we know it today has existed in some form or another since the medieval ages and has served as a means to ensure people charged with a crime do not attempt to flee prior to their trial. This is seen as a way to keep people out of jail while at the same time ensuring their compliance towards the law. However, this system has its flaws, which is why there have been growing calls to remove monetary bail in recent years.
The first and most jarring of the issues with monetary bail is the fact that it is, by nature, discriminatory against the poor. Often a bail is set too high for the defendant to pay, which leaves them with two options: wait in jail until trial or find a bail bondsman who will front the money for a return on investment later. It is a predatory system that punishes people for being in financial straits. The alternative, however, is that they must remain in jail until their court date, which leaves them with minimal time to prepare their case.
Public defenders are often overloaded with cases and may only have a minimal amount of time with a client to prepare a defense. This leads many public defenders to push their clients towards accepting a guilty plea, regardless of whether they committed the crime or not. Often, defendants will take the plea under pressure due to their lack of knowledge about the court system. The effect that monetary bail has on individuals is a serious issue, but even worse are the problems that it creates for the wider criminal justice system as a whole.
In recent years, there has been a discussion growing on the disproportionately large size of the prison population in the United States. However, equally jarring is the outrageously high jail population. The issue being that, while in prison, everyone has been at the very least convicted of a crime in jail. At least 62% of inmates were incarcerated with no conviction, largely because many of them could not afford bail.
The purpose of jail is to house offenders while they await trial or after conviction where they will soon be transferred to a prison to spend their sentence. Offenders whose sentences may last less than a year also generally serve their sentence in jail. The population of all local prisons was 631,000 as of March this year. The population of all state prisons was 1,291,000 as of the same date. The jail population, consisting of roughly half the prison population, is a logistical nightmare, and with a large majority of those people having been incarcerated without any trial, it has shown that the bail system as it stands is currently taxing our criminal justice system greatly.
With these problems in mind it is no wonder there have been efforts made to develop a new system that serves the same function as bail without its serious drawbacks. New Jersey took a major step in 2017 to remove monetary bail altogether and, instead, has begun using a computer algorithm to determine flight risk. This algorithm does not consider factors such as race or socioeconomic status and is designed to curtail the disparities that are caused by human bias. It allows judges to decide without setting a monetary requirement, which in turn gives poorer inmates a chance to make bail, whereas otherwise they would be stuck in jail.
After a year in practice it was shown to have reduced the pre-trial jail population by 20%. There was concern prior to the removal of cash bail that the new system would cause crime to skyrocket now that many more offenders would have access to bail. This was a false assumption, though, as New Jersey’s crime rates did not rise, and by some estimates have even dropped in the ensuing years. The only difference in court attendance was a 3% increase in defendants failing to show up for their court dates. There was also a 1% rise in crimes committed by those out on bail. These numbers, however, pale in comparison to the significant drop in the pre-trial jail population, which has, since 2018, seen the reduction increase to 44%.
While many of us are fortunate enough to never have contact with the criminal justice system, barring the odd parking ticket, it is important to remember that for those this does affect, the consequences can impact their lives for years or even decades to come. The use of monetary bail has been around for many years. However, most other countries have long done away with it, and in the few others that still have it, commercial bondsmen are unheard of. There have been many areas of our criminal justice system that have come under scrutiny in recent years and especially in recent months, and bail is no exception. One thing is for certain: it will be interesting to see whether the rest of the states continue to use monetary bail or if they will follow New Jersey’s lead.
Ethan Shaw is a fourth-year criminal justice major. ES939828@wcupa.edu