Bail Fail: The Issues of Money Bail for the Indigent

Abstract

What would occur in the criminal justice system if cash bail was completely eradicated except in select cases that warranted a total denial of bail? The most striking result would be the immediate release of over 400,000 Americans who have not been convicted of a crime, but because they cannot afford to post bail, remain in jail awaiting their day in court.

Bail has transformed from an instrument to ensure the accused appeared in court, to a complex device that has a substantial effect on the outcomes of cases. Empirical studies on the impact of cash bail, and its resulting pretrial detention of indigent arrestees, have determined that those who are unable to post bail—presumably because of the inability to afford the amount required—are more likely to plead guilty, serve longer sentences, and endure detrimental impacts to their lives prior to being found guilty. Bail was never intended to be used as a punishment device; however, for many accused who do not have the wealth to post bail, it is just that. This paper will look at the historical foundation of bail, how bail changed in the mid-twentieth century, the effects of these changes on those who cannot afford bail, and finally the recent federal and state cases that are beginning to address the issue in favor of indigent arrestees. The federal courts have addressed the problem in different ways but ultimately seem to be in agreeance that imprisonment solely because of indigent status is not constitutionally permissible.

Keywords: bail, bond