For most days of the year, more than sixty percent of the American jail population consists of individuals who have not been convicted but rather exist in detention as they await their charge. If those individuals could afford to pay bail, sixty percent of people in jail would be out, they would be working, spending time with family, and living their lives. In reality the only element of bail mentioned in the constitution is a prohibition on “excessive bail,” but never that bail is mandatory. Considering the prior two statements it would seem the American criminal legal system is in constant violation of the Constitution. However, the Supreme Court has clarified what ‘excessive bail’ entails as well as the dual purpose of bail and in doing so, gave legitimacy to the practice of monetary bail. This paper will argue monetary bail is, first, an unproductive force in American criminal practice which only exacerbates economic problems for defendants. Then, this paper will explore potential bail reform plans and, after, alternative forms of bail to supplant monetary bail. I argue monetary bail, or cash bail, is an ineffective practice which not only has a negligible effect on the argued benefits of bail but also a horrendous effect on the livelihoods of those unable to afford bail and because the majority of those issued bail are detained while not receiving a conviction; bail in its current form is an affront to the principle of innocent until proven guilty.
Individuals in favor of monetary bail frequently reference two benefits of the practice but in reality, case studies have shown both of these benefits are nonexistent. The first often cited benefit of bail is it ensures defendants will appear for trial. A fairly straightforward purpose which was succinctly defined in Stack v. Boyle, 342 U.S. 1 (1951), wherein the Supreme Court ruled what ‘excessive bail’ entailed, concluding that bail should be reasonably calculated to “assure… the presence of an accused”. Initially this appears to be a logical argument for bail as money can be a powerful motivator. The issue with charging someone money in exchange for their freedom with the assumption they will want their money back and will therefore appear in court, is it only functions if that person has the money in the first place. Referring to calculations in Rethinking Bail Reform, by Assistant Professor Wendy Calaway of the University of Cincinnati Blue Ash College and Professor Jennifer Kinsley of Northern Kentucky University (2018), sixty percent of the United States jail population consists of people awaiting their charge and in detention because they could not post bail.
An additional consequence of this system is the perpetuation of the cycle of poverty and crime entrapment. Someone who cannot post bail because they are living paycheck to paycheck will now only lose their livelihood due to them being unable to work which places them further into poverty. As Professor Kinsley and Assistant Professor Calaway (2018) note, once a defendant is in jail their “employment, housing, and financial stability [is] jeopardized”.4 Despite the initial purpose of bail causing immense harm, pro-bail pundits may argue the second goal of monetary bail justifies its existence. In reality, this justification remains problematic.
A secondary case to justify monetary bail is it protects communities from criminals who, if not detained, pose a threat. Yet despite that reasoning I propose this justification is emotionally charged and exists in contradiction to the principle of innocent until proven guilty. Stated in United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court affirmed the first purpose of bail, to ensure the accused appear in court, and defined a second purpose: bail could be used to protect the community from those who pose a threat. It can be argued that many of those who cannot afford bail are sincerely guilty and it would be a danger for those individuals to not be detained. Much of this rhetoric originates from a “heightened public fear of crime during the mid to late 1970’s,” which Associate Professor John Goldkamp of Temple University (50) explains, caused legislatures to increasingly securitize bail and encourage higher bail amounts. This resulted in the Bail Reform Act of 1984 which made federal magistrates free to consider whether a given defendant might pose a threat to the community should they be released on bail.
Considering this information and history I believe justifying the existence of bail due to a fear of crime is an unreasonable practice. The concept of ‘innocent until proven guilty’ is popularly viewed to be embodied in the American legal system. Yet the existence of monetary bail appears to oppose that theory as individuals can, and are, detained without a conviction. Despite my assertion of the un-American institution of bail the question still persists of the efficacy of bail, and case studies have proven it to be lacking.
In an incredible confluence of a unique legal situation and academic rigor the question of bail’s effectiveness in achieving the two previously mentioned goals was measured, and bail accomplished neither. In 2018, a recently elected ‘progressive prosecutor’ in Philadelphia announced their office would not mandate bail for an extensive list of offenses including misdemeanors and nonviolent felonies. It should be noted magistrates could set bail if they believed it to be necessary, however it was no longer mandatory. Aurelie Ouss of the University of Pennsylvania and Megan Stevenson of the University of Virginia School of Law conducted a study on how a lack of monetary bail in Philadelphia affected rates of pretrial crime and failure to appear in court for those who were not required to pay bail. The authors of the study (1) found “no evidence that financial collateral has a deterrent effect on failure-to-appear or pretrial crime.” To further break down the authors’ findings the first goal of monetary bail, to ensure defendants appear in court, was proven to be unaffected by removing bail as failure to appear rates increased by 0.009 percent after four months, a statistic the authors were unwilling to assign significance due to accounting for error. This leaves the second goal of monetary bail, to prevent defendants from potentially committing crimes before trial, as the only utility of bail. Yet with no bail in place, the authors found no notable increase in recidivism (new criminal charges) after initial court hearings within six months. The only statistic which increased for all defendants arrested were rates of being released without monetary or supervisory conditions. What this case study reveals are a lack of effects monetary bail has on the criminal legal system. From this a new question can be asked, why then is bail issued and can it be changed?
There exist two potential routes for bail reform: changing the requirements thereby qualifying how bail is issued or creating alternative forms of bail from monetary means. In an almost literary analysis of state bail reform Professor of Law Shima Baughman along with Lauren Boone, J.D. and Nathan Jackson, J.D. from the University of Utah, authored Reforming State Bail Reform, which criticizes most bail reform bills for failing to addressing the fundamental issue with bail. According to the authors, states must change the underlying presumptions in pretrials from detention to release, arguing the presumption of innocence until proven guilty must prevail unless it is functionally impossible to release a defendant safely. As I argued previously, the practice of monetary bail is an antithesis to the ideal of innocent until proven guilty. If states, prosecutors, judges, and juries presume a defendant guilty then issuing a high bail and detaining them prior to conviction is easier.
Individuals responsible for pretrial detention and magistrates issuin