Reforming the U.S. Bail System

March 20th, 2017 by Attorney Dan Carman

The act of being arrested puts into motion a lengthy series of events that deeply affect a person’s fundamental right to freedom. A variety of factors unique to each situation determines how much time passes between arrest and trial. To be released from custody while waiting for case disposition is generally done by posting bail. If granted by the court, bail is essentially a financial promise that a released suspect will return for further proceedings.

It is a violation of the Constitution to set bail excessively high, which means it cannot be more than the amount that is reasonable to guarantee that the arrestee will return when required. However, many judges focus only on the charges, without taking criminal history or especially, financial means into account. This practice can have the unfair effect of jailing poor pre-trial defendants while those with more money go free.

According to the Pretrial Justice Institute, more than half of the individuals in jail are awaiting trial. Of those inmates, nine in ten are there because they have not posted a bond. Those who can’t buy pretrial freedom are four times more likely to be sentenced to jail and three times more likely to be sentenced to prison than those who are able to post bail. They also tend to receive longer sentences and often plead guilty — regardless of whether they actually are — in order to be released from incarceration sooner than if they waited for trial.

People who can’t make bail are stuck in a holding pattern while the outside world continues to progress. They can be left powerless — regardless of how the charges eventually turn out – as vehicles are impounded, jobs are lost, bills go unpaid, relationships fail, pets are seized, kids get placed with relatives or social services. Such major consequences can lead to extreme desperation and a higher risk of being arrested again.

The situation has led to some recent federal rulings that the use of money for bail unconstitutionally disadvantages those who are too poor to afford bond. In the alternative, pre-trial detention based on risk has the potential to be more fair than that based on money. Weighing factors such as family support, employment, residence, local connections, criminal record, prior failures to appear, potential for dangerousness, and current charges are more effective in determining whether an arrestee is a flight or safety threat.

Some jurisdictions have implemented computer programs that assess the factors and reduce them to a risk score that judges can use as a guide. These scores can be very helpful in assessing the reasonableness of releasing low- or medium-risk defendants on their own recognizance. Other states have instituted reforms to structure a supervised release system. Common conditions are similar to those of probation and include electronic monitoring, random drug testing, and phone calls.

No one can anticipate what an arrest will entail, so if it happens to you or someone you love, consult a criminal defense attorney to protect your rights. If you have any questions about this topic, you can find out more by discussing it with one of the attorneys at the Lexington, KY-based Carman Law Firm. As criminal defense lawyers with years of experience, we offer thorough, experienced representation. Call us today at (859) 685-1055 or fill out this online contact form to find out how we can help you.