The problem with the U.S. bail system - Camilo Ramirez

Since 2000, the annual number of people
convicted of crimes in the United States

has stayed steady, but the average number
of people in jail each year has shot up.

How can that be?

The answer lies in the bail system—

which isn’t doing what it
was intended to do.

The term ‘bail’ refers to the release
of people awaiting trial

on condition that they return to
court to face charges.

Countries around the world use
many variations of bail,

and some don’t use it at all.

The US bail system relies primarily on
what’s called cash bail,

which was supposed to work like this:

When a person was accused of a crime,

the judge would set a reasonable
price for bail.

The accused would pay this fee in order
to be released from jail

until the court reached a
verdict on the case.

Once the case ended, whether
found guilty or innocent,

they’d get the bail money back if they
made all their court appearances.

The rationale behind this system is that
under US law,

people are presumed innocent
until proven guilty—

so someone accused of a crime should
not be imprisoned

unless they’ve been convicted of a crime.

But today, the bail system in the U.S.
doesn’t honor

the presumption of innocence.

Instead, it subverts peoples’ rights
and causes serious harm,

particularly to people in low-income
communities and communities of color.

A key reason why is the cost of bail.

In order for cash bail to
work as intended,

the price has to be affordable
for the accused.

The cost of bail wasn’t meant to reflect
the likelihood of someone’s guilt—

when bail is set, the court has not
reviewed evidence.

Under exceptional circumstances, such
as charges of very serious crimes,

judges could deny bail and jail the
accused before their trial.

Judges were supposed to exercise this
power very rarely,

and could come under scrutiny
for using it too often.

Setting unaffordably high bail became
a second path

to denying people pretrial release.

Judge’s personal discretion and
prejudices played a huge role

in who they chose to detain this way.

Bail amounts climbed higher and higher,
and more and more defendants couldn’t pay—

so they stayed in jail.

By the late nineteenth century,

these circumstances led to the rise of
commercial bail bond companies.

They pay a defendant’s bail, in exchange
for a hefty fee the company keeps.

Today, the median bail is $10,000––

a prohibitively high price for almost
half of Americans,

and as many as nine out of ten defendants.

If the defendant can’t pay,

they may apply for a loan from a
commercial bail bond company.

It’s completely up to the company to
decide whose bail they’ll pay.

They choose defendants they think
will pay them back,

turning a profit of about
2 billion dollars each year.

In fact, in the past 20 years,

pretrial detention has been the main
driver of jail growth in America.

Every year, hundreds of thousands of
people

who can’t afford bail or secure a loan
stay in jail until their case is resolved.

This injustice disproportionately affects
Americans who are Black and Latino,

for whom judges often set higher bail

than for white people accused
of the same offenses.

Unaffordable bail puts even innocent
defendants in an impossible position.

Some end up pleading guilty to crimes
they did not commit.

For minor offenses, the prosecution may
offer a deal that credits

time already spent in jail toward the
accused’s sentence if they plead guilty.

Often, the time they’ve already spent in
jail is the total length of the sentence,

and they can go home immediately—
but they leave with a criminal record.

Defending their innocence, meanwhile,

can mean staying in jail indefinitely
awaiting trial—

and doesn’t guarantee an
innocent verdict.

Bail may not even be necessary
in the first place.

Washington, D.C., largely abolished
cash bail in the 1990s.

In 2017, the city released 94% of
defendants without holding bail money,

and 88% of them returned
to all their court dates.

The nonprofit organization,
The Bail Project,

provides free bail assistance to
thousands of low-income people every year,

removing the financial incentive
that bail is designed to create.

The result? People come back to 90%
of their court dates

without having any money on the line,

and those who miss their
court dates tended to

because of circumstances like child care,
work conflicts, or medical crises.

Studies have also found that holding
people in jail before trial,

often because they cannot
afford cash bail,

actually increases the likelihood
of rearrests and reoffending.

The damage of incarcerating people before
their trials extends to entire communities

and can harm families for generations.

People who are incarcerated can
lose their livelihoods, homes,

and access to essential services—

all before they’ve been
convicted of a crime.

It’s also incredibly expensive:

American taxpayers spend nearly 14 billion
dollars every year

incarcerating people who are legally
presumed innocent.

This undermines the promise of equal
justice under the law,

regardless of race or wealth.

The issues surrounding cash bail are
symptomatic of societal problems,

like structural racism and over-reliance
on incarceration,

that need to be addressed.

In the meantime, reformers like The Bail
Project

are working to help people trapped by
cash bail

and to create a more just and humane
pretrial system for the future.