A man or women sits in jail for a petty crime. It may be simple theft or possession of a small amount of marijuana. Both non-violent misdemeanor crimes. This person has been in jail for weeks awaiting trial. This has resulted in the loss of his or her job, apartment, means of transportation, a cost to taxpayers, and a great deal of mental stress. In the next cell over, someone convicted of a similar crime is released and able to go back to work, hire a lawyer, and face a relatively small punishment consisting of community service, counseling, and a fine.
Why would two people, convicted of similar crimes with similar criminal history be treated so different? Are the scales of justice out of sync? The difference is the first person in this hypothetical did not have the money to post bail. The later had the money to post bail. A recent NPR story on this matter depicted several stories where this is not just a hypothetical – its real and it effects tens of thousands of people across the United States.
The modern U.S. bail system, like many of our legal systems, grew out of old English standards. In England, up until the 1300s, the local sheriff would determine if a suspect could be released on bail and what that bail amount would be. This arbitrary system was replaced in 1275 by the Statute of Westminster. The statute clearly stated which crimes allowed for bail. In colonial America the bail system was patterned after English standards until the 8th amendment of the U.S. Constitution was adopted.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Bail laws remained unchanged for most of our nations history until the Bail Reform Act of 1966. The Bail Reform Act provides that a non-capital defendant (those not charged with a capital offense such as murder) “shall…be ordered released pending trial on his personal recognizance” or on personal bond unless the judicial officer determines that these incentives will not adequately assure his appearance at trial.
Still, the current system of holding persons charged with a crime is broken. Is it fair that two people convicted of similar crimes should be treated differently based soley on their ability to pay a few hundred dollars? Are we not burdening the poor with such a system? Are we not burdening tax payers by housing inmates which are a low flight risk?
The bail system certainly provides a valuable service to society by reducing overpopulation in jails and making it the responsibility of a private enterprise to ensure a defendant appears in court. I think it’s necessary that we strike a middle ground between the current bonding system and pretrial release programs. In supervised pretrial release, defendants are released on their promise to adhere to certain court-ordered non-financial conditions, such as reporting in person on a regular basis. Compliance is closely monitored by pretrial services or other criminal justice staff. Failure to comply can result in return to jail. Supervised pretrial release is a vital component in the spectrum of release options. It permits the safe release of moderate-risk defendants who are ineligible for less restrictive options.
A common balance could be struck by keeping the status quo. Provide for near immediate release of defendants charged with bailable crimes – if they can post bail. This gives some the option of returning to a normal life with a monetary incentive to appear in court. Should they violate the terms of their bond, fugitive recovery agents would still be needed to apprehend them. In addition after some point (say 1-2 weeks) the judicial system should be able to review the charges levied against the incarcerated defendants, as well as review their past criminal history to determine if they are eligible for a pretrial release. Such a system would reduce overcrowding in county jails and the associated expenses of incarcerating those that are eligible for bail as well as have a positive impact on all defendants lives by allowing them to resume a semblance of normalcy in their day-to-day activities.
I am very interested in hearing what others think on this matter.