The concept of bail is to ensure that the accused will show up for court once they are released from jail. But for many defendants, bail bonds are set unreasonably high. Unable to raise bail, they sit in jail for months until their trial date rolls around.
An analysis by FiveThirtyEight confirms that the cash bail system is not only unfair, but often random. The research shows that granting of bail varies by jurisdiction — and often comes down to the whims of particular judges.
Bail may depend on the judge you draw
FiveThirtyEight, a news and political blog, examined bail patterns throughout New York City in 2017, in conjunction with The Legal Aid Society. Clients seeking assistance from Legal Aid had a wide range of outcomes. The majority were released with some amount of bail, some were released with no bail, and a small segment was denied bail.
But people facing felony charges in The Bronx or Brooklyn have a nearly 50/50 chance of being released without bail, while defendants in Manhattan had only about a 1 in 3 chance.
Luck plays a big part, namely the judge who presides at arraignment:
- One judge in Queens frequently sets bail at $25,000 or more, with little regard for the person’s ability to pay.
- Another judge in The Bronx routinely sets bail at zero dollars, requiring defendants instead to check in with the court.
- One Manhattan judge denies bail in 25 percent of cases, far more than his peers.
Bail is patently unfair to low-income defendants
Jail is supposed to be temporary quarters after an arrest. But on any given day, there are more than 450,000 Americans sitting in jail pretrial. Some were refused bail because they are a flight risk or pose a threat. But many were granted bail and cannot afford it. Not only are they kept away from their families, but they often lose their jobs or homes while they await trial.
This dynamic increases the pressure to plead guilty. A 2015 study found that Legal Aid clients who were held over in jail in lieu of bail were 34 percent more likely to enter a plea agreement or be convicted at trial.
Presumably there are similar variations in the courts of South Carolina and elsewhere. While judges should have leeway in setting bail, it should not be a complete crapshoot whether one is granted bail or whether the amount is reasonable. In fact, the Eighth Amendment to the Constitution specifically states that “excessive bail shall not be required.”
The movement to reform bail
The American Bar Association and even many prosecutors support less reliance on cash bail, especially for non-violent offenses. The alternatives (such as releasing defendants on their own recognizance or supervised release) would clear out the jails and provide a more level playing field to thousands of individuals who would otherwise be sitting in jail or agreeing to unfavorable plea deals.
Do you think that a cash bond is necessary to prevent “bail jumpers” or do you think the bail system needs to be reformed?