The Problem

Cash bail is an amount of money that a person must pay to be released from jail. The purpose is not to punish the accused, but rather to guarantee that the accused will return for their court date. Around three-fifths of the people in American jails, however, are there, not because they've been convicted of a crime, but because they can't afford bail. That's an estimated 500,000 people, more people in pretrial detention than any other country in the world. The cash bail debate has caught fire in the modern-day because of statistics like those, but its effectiveness has long been a discussion. The Eighth Amendment to the Constitution mandates that a person's bail cannot be set excessively high.

The Debate

Former Heritage legal commentators, John-Michael Seibler and Jason Snead, argue against eliminating cash bail. They claim that the Eighth Amendment does not say bail must be affordable, or even available. They contend that defendants have a right to “reasonable bail,” but Congress and state legislatures can define which crimes are, and are not, considered bailable. Other opponents of ending cash bail, like President Donald Trump, argue that releasing ending cash bail could potentially endanger the public. "Look at what happened in New York," Trump said. "Cuomo ended cash bail. He ended it in New York, and now the crime rate has gone through the roof." To note, The Poynter Institute has ruled that claim to be false. Still, the thought of eliminating cash bail has struck fear into the hearts of many.

Advocates for ending cash bail point to the disproportionately of the situation. Studies show that spending even a few days in jail can result in people losing their job, housing, and even custody of their children. Therefore, advocates believe that holding someone in jail makes that person significantly more likely to commit a crime once released than if they had been free all along, prolonging an endless cycle of arrest and incarceration.

A 2016 University of Pittsburgh study of bail in Philadelphia found that black defendants were given higher bail amounts and held an average of two weeks longer than other defendants. If the bail rates impact black communities more than others, then so will the effects of recidivism. Lastly, advocates also believe the country can save money with the elimination of cash bail. American taxpayers spend around 14 billion dollars annually on pretrial detention costs. That's around 40 million dollars a day.

The Reality

Washington, DC, is heralded as the pioneer of cash bail reduction. In the DC courts, 94 percent of defendants are released pretrial -- of that percentage, 91 percent make their scheduled court dates, and 98 percent avoid being arrested for violent crimes while awaiting trial. The key to DC's reform has been The Pretrial Services Agency risk assessment. A PSA officer uses a tool that gathers information about a defendant during an interview. Their tool examines relevant defendant data to help identify the most appropriate supervision levels for released defendants. After the interview, the PSA officer prepares a report for the judge to consider when determining a potential release. “We've proven it can work without money, but the whole country continues, as if in a trance, to do what we know does not work,” D.C. Superior Court Judge Truman Morrison said. “There is no evidence you need money to get people back to court. It's irrational, ineffective, unsafe, and profoundly unfair.” Other areas like New Jersey, Harris County, Texas, and Philadelphia have also adopted some sort of cash bail reform. Not only did those jurisdictions claim to have saved money, but they say ending or reducing cash bail has not negatively affected court appearances.

According to the Bronx Freedom Fund, 90 percent of people in jail on a misdemeanor will plead guilty. However, over half the cases are dismissed when the fund pays bail. The fund reports that fewer than two percent of their clients have ever received a jail sentence of any kind in their history. “I have been a public defender for over half my life,” Robin Steinberg, who co-founded the fund, says. “I am here to say something simple -- something obvious, but something urgent. Freedom makes all the difference, and freedom should be free.”

The Conclusion

Considering the ethical effects of cash bail, America should define what it means by “excessive bail.” The vague language has left room for inconsistency in the American justice system, specifically for poor communities, and black communities. Without that change, America will continue to fall short of its word.