The U.S. Bail System: An Examination of Its Problems

Since 2000, the number of people convicted of crimes in the United States has remained relatively stable. However, the number of individuals held in jail each year has significantly increased. This discrepancy points to critical issues within the U.S. bail system, which often fails to achieve its intended purpose.

Understanding the Bail System

Bail is the conditional release of individuals awaiting trial, ensuring they return to court to face charges. While bail systems vary globally, the U.S. relies heavily on cash bail. Ideally, this system should work as follows:

• A judge sets a reasonable bail amount for the accused.
• The accused pays the fee to be released from jail until the trial.
• Upon completion of the case, the bail money is returned, regardless of the verdict, provided all court appearances were made.

The underlying principle is that individuals are presumed innocent until proven guilty. Therefore, imprisonment should only occur after a conviction.

How the System Fails

Unfortunately, the U.S. bail system often undermines the presumption of innocence, causing significant harm, especially to low-income communities and communities of color.

A primary issue is the cost of bail. For the system to function fairly, bail amounts must be affordable. However, bail costs have become detached from the accused's ability to pay and are influenced by judicial discretion and biases.

The Rise of Commercial Bail Bonds

The unaffordability of bail led to the emergence of commercial bail bond companies in the late 19th century. These companies pay a defendant’s bail in exchange for a nonrefundable fee.

Today, the median bail is $10,000, an insurmountable sum for nearly half of all Americans and the vast majority of defendants. Those who cannot afford bail may seek loans from bail bond companies, which profit handsomely by selecting defendants they believe will repay them.

Pretrial Detention and Its Consequences

Pretrial detention has become a major driver of jail growth in the U.S. Annually, hundreds of thousands of people remain incarcerated simply because they cannot afford bail. This injustice disproportionately affects Black and Latino Americans, who often face higher bail amounts than their white counterparts for similar offenses.

Even innocent defendants face an untenable situation. Some plead guilty to crimes they didn't commit to secure their release, accepting a criminal record to avoid prolonged incarceration. Meanwhile, defending their innocence could mean indefinite jail time.

Alternatives and Reform

Bail may not always be necessary. Washington, D.C., largely abolished cash bail in the 1990s. In 2017, the city released 94% of defendants without bail, and 88% of them attended all court dates.

The Bail Project

The Bail Project, a nonprofit organization, provides free bail assistance to low-income individuals. Their results show that people return to court in 90% of cases without financial incentives. Missed court dates are often due to childcare issues, work conflicts, or medical emergencies.

Studies indicate that pretrial detention increases the likelihood of rearrests and reoffending. Incarcerating individuals before trial has far-reaching consequences for families and communities, leading to loss of livelihoods, homes, and access to essential services.

The Financial Burden

The current system is also financially unsustainable. American taxpayers spend approximately $14 billion each year incarcerating individuals who are legally presumed innocent. This undermines the principle of equal justice under the law, regardless of race or wealth.

Addressing Systemic Issues

The problems with cash bail reflect deeper societal issues, such as structural racism and over-reliance on incarceration. Reformers are actively working to assist those trapped by cash bail and to create a fairer, more humane pretrial system.

By addressing these systemic issues, we can move towards a more equitable and just legal system for all.