Is the cash bail system unfair?
- Passed in 1789, the Eighth Amendment joined the US Constitution, stating, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
- The cash-bail system is rooted in Anglo-Saxon law. The British-enacted Habeas Corpus Act of 1679 quickened the bail-setting process and allowed releasing defendants prior to trial. This Act was not extended to the colonies but was adopted in the 1689 Bill of Rights.
- If bail is set, there are three major types a defendant can choose from: 1. Cash bond, in which the whole amount is paid, 2. Commercial bond, only 10% paid to a private bond agent who takes liability of the entire bail amount if the defendant fails to appear in court, and 3. Deposit bond, defendant posts 10% and is responsible for remaining amount for failure to appear in court.
- A 2018 Charles Koch Institute poll found that the majority of Americans surveyed, 78%, believe the current cash bail system favors the wealthy, with 57% of respondents to be against jailing those who can’t afford bail.
Only two countries on planet Earth have a cash bail system: the US and the Philippines. In most cases, the bail is set at about 10% of the full bond amount but still must be cash before the individual can be released. The cash bail is utilized to ensure that the defendant will reappear for a hearing or trial. The cash bail is returned to the defendant after making all the required court appointments, but if the individual does not show up, the money is forfeited.
But over the years, it has become apparent this practice discriminates against the poor and communities of color. Data from the US prisons show that at least 70% of the pre-trial detainees (about 450,000 individuals) in US jails are only in that situation because of their inability to afford cash bail. When defendants cannot afford to pay the cash bail, they sometimes turn to private bail bond agencies, who make the bail payment in exchange for a 10-15% non-refundable fee plus secured collateral like a home, car, or jewelry.
Defendants with no funds or assets have no option but to stay in jail, which has several negative repercussions. The continued incarceration further worsens the situation as the individual may lose his or her job, housing, or even custody of their children. Secondly, pre-trial defendants are not only more likely to plead guilty to lower charges but are more likely to be sentenced than those who were released on bail. It is time to reform the cash bail system.
Various forms of the cash bail system have existed in the world for about 1,500 years and in America since its founding. Over the years, as the number of people arrested for crimes has risen, the cash bail system has been necessary to ensure fair and complete trials. People detained awaiting trial make up 70% of the US prison population. Without this system in place and these accused criminals pending trial without any insurance, crime rates would skyrocket. This would have severe effects on the economy and the criminal justice system, in the end probably forcing more extreme measures to be taken as a way of mitigation.
Without the cash bail system, there would be an astronomical increase in the amount of pre-trial detainees that wouldn't show up for their trials. A Denver study revealed that 66% of heroin dealers failed to show up for their court date when released without bail. The system is fair because it provides an opportunity (not guarantee) for everyone to get out while still ensuring that detainees show up for their trials. The cash bail system can simultaneously protect the rights of those detained and protect the community from possibly increased crime.
Additionally, an amendment was passed that made it unlawful to charge excessive bail forcing the set bail to be an equitable amount for each detainee while still providing substantial economic support to the American economy. In 2017 private bail bonds companies attained 15.9 billion dollars in bonds and about $1.3 billion in premiums. With the cash bail system, industries like these would collapse, and it's one fair way society can go about keeping the rule of law and order.