The right to bail in this country was firmly planted by the Framers in the original Bill of Rights: the Eighth Amendment of the U.S. Constitution specifically prohibits excessive bail.


Much has changed in this nation’s criminal justice system since the Bill of Rights became effective on December 15, 1791. Wealth and poverty have created two standards of justice in the United States: the rich and powerful enjoy a presumption of innocence while the poor and indigent suffer from an assumption of guilt.


Dual System of Justice


This dual standard of justice is reflected in many ways each day as the justice system deals with the nearly 11 million arrests made each year and the two million juveniles placed in juvenile detention each day. The right to bail following arrest is just one of places where the dual standard of justice erects its ugly head.


According to the Prison Policy Initiative, there are 3,163 jails in the United States, and, according to The Atlantic Daily, it costs taxpayers roughly $14 billion each year to subsidize detention in these jail facilities.


On any given day, there are 633,000 people housed in the nation’s jail system—96,000 of whom are women. 60 percent of these women—80 percent of whom are mothers—have not been convicted of a crime and are in jail for no other reason than they cannot afford the average $10,000 bail they need to post in order to be released pending disposition of their cases, according to the Atlantic. Women who cannot make bail have a median annual income of just over $10,000.


Nine Out of Ten in Jail Because Cannot Afford Bail


Prison Policy says that of the 633,000 jail detainees, some 187,000 of them have been convicted, mostly of misdemeanors, and are serving sentences under a year. Nine out of ten of the non-adjudicated jail detainees are there because they cannot afford to make bail


In a sense, bail has become a privilege of wealth. People with financial means can secure release from jail through bail, unless their criminal charge is so serious as to create a risk of flight or dangerousness to the community. Those posting bail effectively enjoy that presumption of innocence while those unable to afford bail live through detention with what is effectively an assumption of guilt, serving time for a crime for which they have not been convicted.


The money bail bond system has created this horrific system that is geared to pressuring the guilty, as well as the innocent, to accept forced plea agreements.  The dirty tradeoff is this: a defendant pleads guilty simply to get out of jail, regardless of the merits of the case or appropriateness of the plea.  This frees up the congested court dockets and keeps this inhumane machine moving along.

Civil Rights Lawsuits Push for Reform


Civil rights advocates and bail reform activists across the nation are fed up with the nation’s corrupt money bail system. They are filing lawsuits (which are opposed by both the county administrators and the bail bond industry) and lobbying legislators to either eliminate the money bail system altogether or at least reform the current inequity bail system.


Last August, NBC News reported in-depth about the nationwide effort to reform the money bail system and remove it from the corrupt grip of the bail bond industry:


“Across the country, reformers are chipping away at money bail, arguing that it discriminates against the poor, ruins innocent people’s lives, fuels mass incarceration and contributes to wrongful convictions. The movement is part of a much broader effort to end abuses across the criminal justice system, from biased policing to burdensome court fees to mandatory minimum prison sentences.


“Philanthropic organizations are funding projects in more than three-dozen states to eliminate bail and adopt algorithm-based risk-assessment tools. Judges are pushing similar efforts in Maryland, Arizona, and Indiana. Lawmakers are the driving force in a handful of other states, including Illinois and California.


“Civil rights organizations have challenged bail-based systems in a dozen local jurisdiction, arguing that they violate constitutional protections of equal treatment and due process. The targets range from tiny Calhoun, Georgia, where the U.S. Justice Department has argued that the town’s use of cash bail was unconstitutional, to Harris County, Texas, where in April a judge ordered authorities to stop detaining people charged of low-level crimes.”


Last July, Democratic and Republican senators joined to introduce a bill that would encourage more states to pursue risk-assessment tools like algorithm to replace money bail. Last year, legislators in the State of Texas also undertook legislative efforts to attempt an overhaul its bail system which is forcing taxpayers to spend $900 million each year on pretrial incarceration.


Algorithm and Risk Assessment Tools


The purpose of algorithm and other risk-assessment tools is to use unbiased criminal history, personal history and social history data to decide who can safely be released into the community through personal recognizance bail and who poses such a significant threat to public safety as to be detained pending trial.


Prosecutors and law enforcement officials are not particularly fond of risk-assessment tools. They favor detention of all those charged with gun crimes, fleeing from the police, assaulting the police, sex offenses or domestic violence. They believe these kinds of individuals are prone to re-arrest and pose unacceptable risk to the general community.


The problem with this law-and-order theory is that our justice system must be governed by the rule of law, not the exception to it. The police and prosecutors, when dealing with wealthy offenders are predisposed to believe that these offenders do not pose any risk to society. Their law-and-order concerns tend to focus on the underclass, the less-than-privileged who they appear to believe are more prone to criminal activity than the upper-class.


We believe that every one of Texas’s 254 counties should eliminate money bail altogether and replace it with a system that presumes release on personal recognizance for all first time, non-violent offenses, adding additional conditions, to be determined by risk-assessment tools, for more serious offenses and repeat offenders. Bail should not be a cash cow for the bail bond industry and judges and politicians should not be beholden to that industry in order to get reelected.  Inability to make bail should not be used as a tool to force pleas and get plea bargains done expeditiously.


Our justice system was designed to treat all people equally.  Justice should not be measured by wealth and privilege, rather by fairness and integrity.