Catherine Yackira ’24

Opinions Editor

I have watched many courtroom dramas where a typical bail hearing goes like this: pan to the defendant, looking fearful- they just want to go home to their family! A neatly dressed lawyer with a fancy briefcase is sitting next to them: they just want to get paid. The judge bangs gavel: pan to judge, “Bail is set at one million dollars!” Pan to defendant: “one million, I can’t afford that!” The lawyer leans in and whispers, “don’t worry, you only have to pay 10% of that.” Phew! Luckily the defendant has $100,000 lying around. So they get to go home—a simple procedure. Now I have some shocking news; real-life doesn’t mirror courtroom dramas. Peeling back the layers of the ‘simple procedure’ that is the bail system in America is, in a word, complex—in another word, broken.  

It all starts with the eighth amendment’s promise that “excessive bail shall not be required.” This was loosely plagiarized (our forefathers did not have the same academic integrity expected from Holy Cross students) from the English Bill of Rights of 1689, which, among other things, not only protected citizens against excessive bail but also stated which offenses were bailable. Distinguishing between bailable and non-bailable offenses gave citizens an explicit right to bail for certain offenses, one that doesn’t exist in the U.S. constitution. So, do citizens have an absolute right to bail? The answer is—kind of yes, but also no. The Supreme Court has addressed the right to bail three times, and the broad ruling on it is that the eighth amendment protects against excessive bail (Stack v. Boyle), but it doesn’t provide an absolute right to it (Carlson v. Landon). 

But that’s not the end of this real-life courtroom drama! 48 state constitutions explicitly protect the right to bail through “sufficient sureties”.Sufficient sureties refer to the means of guaranteeing that an accused criminal will appear in court. This can be anything from cash to a pinky promise to real estate to simply signing your name to a document that says you will show up for your court date. The debate in state courts is whether money really constitutes a “sufficient surety”: eight states have ruled that it is, seven states have ruled that it’s not, and the rest have not yet decided. So, this means that most states rely on a cash bail system. The cash bail system is the typical courtroom drama scene- though one million dollars for bail is pretty dramatized, the median amount is $10,000. Studies have shown that this is an effective way to ensure a defendant returns to court for their trial, and only 15-22% of defendants fail to return to their court date. So, this is great! If you can afford it, you can await your trial within the comfort of your own home. But what if you can’t afford it? Well, then you sit in jail until your trial date. You may lose your job or custody of your child. You are subjected to being jailed for a crime for which you haven’t been convicted. In theory, the goal of the cash bail system was to protect defendants and to preserve the presumption of innocence. It was a way to allow them to await their trial outside of a jail cell while giving the prosecutor and judge something with more weight than a pinky promise to ensure that the defendant actually returns for their trial date. The incorporation of money was merely to act as a strong incentive for defendants to return to trial, but in practice, it penalizes people who cannot afford it.  

So let’s look into the chambers of the judges who are setting bail in our courtroom drama. Judges keep in mind the goals of bail: the defendant’s appearance in court, the safety of the community, and the defendant’s liberty interest before conviction. Then, they focus on four factors in particular: the accused criminal history, their history of dangerousness within the community, the accused ties to the community (employment, family, property), and the nature of the charged offense. Some jurisdictions don’t even do that and instead use bail schedules, which are predetermined bail amounts based on the accused charges, thus seeking to standardize the bail setting process. Notice a key factor that is not taken into account is whether or not a defendant can actually pay bail. When you don’t take that into consideration, it’s tough to determine if the bail is ‘excessive.’ This results in many defendants not being able to afford bail and being stuck in jail because of it. According to the American Bar Association, “More than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail.” So, they’re stuck. 

Cash bail is the leading reason why jails are overcrowded, and in fact, 3/5th of people in jail have not been convicted and are merely awaiting trial. Along with being dehumanizing and unjust, pretrial detention, even if the defendant is only held for a few days, can cause them to lose their job, place of residence, and even custody of their children. On top of that, defendants who are not released on bail are three to four times more likely to receive a sentence to jail or prison- and some will plead guilty to a crime they didn’t commit. This is because prosecutors will often cut deals that let the defendant’s time in pretrial detention count towards their sentence; for minor offenses, this could mean the defendant is immediately released. Being approached with a deal like this is too good to pass up for some defendants as it is less risky and costly than going through a trial. But, the main issue with that is now the defendant has a criminal record, which could prevent them from being employed, and could make future convictions even harsher. 

Oh, also, if you’re into taxes, pretrial detention costs taxpayers roughly 38 million dollars every day. 

Reforming cash bail starts with a presumption of release. This puts the burden on prosecutors to prove that a defendant should be detained, rather than putting the burden on the defendant to come up with money so that they can be released. Washington DC is an example of a jurisdiction that has eliminated cash bail with success. 94% of defendants are released pretrial, and 91% appear in court for their trial. Instead of using cash bail, D.C. relies on other sufficient sureties—for example, release via own recognizance (OR) and supervised own recognizance (SOR). OR simply means that a defendant would simply sign a document promising to return for trial. The more effective form of pretrial reform is SOR: this is when a defendant is released and, until their trial, is required to participate in mandatory drug tests, alcohol level monitoring, and electronic monitoring systems-think your typical ankle monitor. This has shown to be comparable to the effectiveness of cash bail release and proves that there are other “sureties” just as “sufficient” as cash. If we claim to be a country committed to the presumption of innocence, the bail system needs to be reformed. The way that bail is calculated means that many defendants simply cannot afford it and are effectively denied bail. In Stack v. Boyle, the Supreme Court said, “Unless this right to bail before trial is preserved, the presumption of innocence… would lose its meaning.” That is exactly what has happened. In the U.S.; defendants who haven’t been convicted of a crime are jailed only because they don’t have the money to be set free. This means the presumption of innocence only exists for those who have enough money in their bank account, while the poor are guilty until proven innocent.