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Bail reform confronts a practice 'deeply ingrained into the American psyche'

Adriana Belmonte
·Senior Editor
·6 min read

Bail reform is slowly gaining support amid protests against police brutality.

Activists argue that cash bail is an unseemly system that unfairly targets minorities. At the same time, the practice is fundamentally American and thus resistant to change.

“This idea of bail is deeply ingrained into the American psyche, and it’s so deeply ingrained in American life,” Taryn Merkl, senior counsel at the Brennan Center for Justice, told Yahoo Finance. “It’s included in a lot of our foundational documents. And so, in order to make widespread change, there will need to be legal changes and practice changes across the country.”

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BROOKLYN, NY - JUNE 12: Activists gather outside the Metropolitan Detention Center, a Federal prison, to demand justice for Jamel Floyd, a prisoner who died nine days earlier after being after being pepper sprayed by corrections officers, on June 12, 2020 in the Sunset  Park neighborhood of Brooklyn, New York. George Floyd's videotaped death at the hands of a police officer in Minneapolis has highlighted the struggle for racial justice in America. (Photo by Andrew Lichtenstein/Corbis via Getty Images)
Activists gather outside the Metropolitan Detention Center to demand justice for Jamel Floyd, a prisoner who died nine days earlier after being after being pepper sprayed by corrections officers, in Brooklyn, New York. (Photo by Andrew Lichtenstein/Corbis via Getty Images)

‘A modern-day debtors’ prison’

Bail was initially established in the U.S. as a way to incentivize people accused of crimes to appear at their court hearings.

While some people pay the full amount, others pay what’s called a surety bail bond, where the defendant pays 10% of the bail amount to a bail agent and puts collateral (like the deed to their house) in case they don’t appear. According to Harvard Law School, the U.S. and the Philippines are the only two countries that have a legalized commercial surety (for-profit bond) industry.

Democratic nominee and former Vice President Joe Biden proposed ending cash bail altogether, calling it “the modern-day debtors’ prison” that disproportionally burdens low-income Americans. President Trump, however, criticized the move by New York to end bail for low-level offenses.

NEW YORK, NY - MARCH 31:  People walk by a sign at the entrance to Rikers Island on March 31, 2017 in New York City. New York Mayor Bill de Blasio has said that he agrees with the fundamentals of a plan to close the jail complex on Rikers Island within 10 years. A newly released report from an independent commission, led by Judge Jonathan Lippman and created by the City Council last year, has recommended the closer of the troubled facility.  (Photo by Spencer Platt/Getty Images)
People walk by a sign at the entrance to Rikers Island on March 31, 2017 in New York City. A newly released report from an independent commission, led by Judge Jonathan Lippman and created by the City Council last year, has recommended the closure of the troubled facility. (Photo by Spencer Platt/Getty Images)

Paul Cassell, a professor at the S.J. Quinney College of Law at the University of Utah, suggested that the system should go beyond considering financial circumstances of a defendant when determining bail.

“For example, if one factor that’s often been looked at is whether the defendant has stable employment at the time of the crime, the theory being that somebody who’s got stable employment is going to be less likely to jeopardize that either by absconding before trial or committing other crimes,” Cassell told Yahoo Finance. “But then if we live in a society as we do where those employment statistics are different based on race, does using that kind of statistic involve implicit bias or does that simply mirror differing conditions around the country?”

He added: “We’re trying to find that Goldilocks spot where we’re not detaining too many people, which is unfair to defendants and very expensive for the community, but at the same time, we don’t want to release too many defendants that then go on to commit additional crimes and impose additional costs on victims.”

Oklahoma and Louisiana have some of the highest incarceration rates. (Map: The Sentencing Project)
Oklahoma and Louisiana have some of the highest incarceration rates. (Map: The Sentencing Project)

The core idea behind bail’

Cassell described bail as “an umbrella term.”

“Some people refer loosely to bail when they’re more precisely talking about something else,” he said. “But the core idea behind bail is a defendant says, ‘look, I’m going to post a thousand dollars here and that’s my guarantee that I will show up for trial and that I won’t commit additional crimes while I’m on release.’ And if the defendant violates those promises, then the bail can be forfeited. So the bail amount posted is the assurance that the defendant will appear for trial, or sometimes can be used as a way of assuring that the defendant won’t be committing additional cimes.”

An activist dressed as a prisoner stands in front of the US Capitol Building during a rally for Congress of Conscience on Capitol Hill April 18, 2016 in Washington, DC. (Photo: BRENDAN SMIALOWSKI/AFP via Getty Images)
An activist dressed as a prisoner stands in front of the US Capitol Building during a rally for Congress of Conscience on Capitol Hill April 18, 2016 in Washington, DC. (Photo: BRENDAN SMIALOWSKI/AFP via Getty Images)

The broader term, Cassell explained, is “pretrial release” and bail is just one form of it. Others include ROR — released on own recognizance.

“That involves simply a signature from the defendant promising to appear at trial, no money is posted,” he said. “That’s the idea that there are various ways pretrial release can be structured and bail is just one of them.”

The issue, though, is that it’s often minorities who have to pay for bail.

According to the Prison Policy Initiative, “black and brown defendants are at least 10-25% more likely than white defendants to be detained pretrial or to have to pay money bail.” Data indicates that they receive bail amounts twice as high as those set for white defendants, and “are less likely” to be able to afford it.

In New Jersey, Wisconsin, Iowa, Minnesota, and Vermont, the rate of black imprisonment is more than 10 times that for whites. (Map: The Sentencing Project)
In New Jersey, Wisconsin, Iowa, Minnesota, and Vermont, the rate of black imprisonment is more than 10 times that for whites. (Map: The Sentencing Project)

There are up to 500,000 people being held in local jails across the U.S. because they cannot afford to pay bail, according to the American Bar Association, and most are for low-level offenses.

“There’s a significant number of people in pretrial custody and these policies have a significantly disproportionate impact on people of color, particularly black and Latina groups, and to other impoverished communities,” Merkl said.

‘The very concept of cash bail is enshrined in the United States Constitution’

Large U.S. states California, New Jersey, and New York passed bail reform laws, and Merkl described New Jersey as the best example of a state that implemented successful reform.

“[It] permits consideration of potential dangerousness and the methodology that New Jersey implemented seems to be working well for them,” she said.

Prisoner holding metal cage in jail, no freedom concept
Prisoner holding metal cage in jail, no freedom concept

However, for New Jersey to reform the state’s bail system, its constitution had to be amended.

“The very concept of cash bail is enshrined in the United States Constitution,” Merkl said. “It’s similarly enshrined in state constitutions across the country. There are some state constitutions that actually require people to be able to set cash bail, except in cases where the death penalty may be an issue for those states that still have the death penalty. In the states that don’t have the death penalty, that’s been translated to significant modal number in murder cases essentially.”

Adriana is a reporter and editor covering politics and health care policy for Yahoo Finance. Follow her on Twitter @adrianambells.

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