Should Bail be Eliminated?

When Maranda ODonnell was arrested in May 2016 in Houston, Texas, for driving with an expired license, the judge set her bail at $2,500. At the time, the 22-year-old single mother was earning close to minimum wage as a waitress. She couldn’t afford to pay, so she spent three days in jail. She missed time at work, and her mother had to care for her 4-year-old daughter.

The same day ODonnell was pulled over, 37-year-old David Dorsey was also arrested by Houston police. He was charged with the more serious crime of felony burglary. Two courtrooms over from ODonnell, Dorsey’s bail was set at $30,000. He quickly posted bail and left the jail the following morning.

The contrast between ODonnell’s and Dorsey’s cases isn’t uncommon. On any given day, there are approximately 450,000 people being held in U.S. jails awaiting trial. Those who can afford to post bail are released. Poorer suspects often spend days, weeks, or months behind bars as their cases work their way through the courts.

America’s bail system, which dates to the nation’s founding, is meant to ensure that suspects who are let out of jail don’t flee while their cases are being decided. Those who aren’t considered dangerous or a flight risk are given the option to post bail, which is paid to the court. As long as the suspect cooperates in the legal proceeding, the money is returned when the case concludes.

But critics say the system is inherently unfair to low-income people, and some states are now moving to reform it or doing away with cash bail entirely. 

“The bail system determines who is free and who is in a cage based solely on access to money,” says Alec Karakatsanis, a civil rights attorney who has sued several states and cities over their bail policies. “It’s about who’s rich and who’s poor.”

America’s bail system dates to the nation’s founding. It’s meant to ensure that suspects who are let out of jail don’t flee while their cases are being decided. Those who aren’t considered dangerous or a flight risk are given the option to post bail. They pay the fee to the court. As long as the suspect cooperates in the legal proceeding, the money is returned when the case concludes.

But critics say the system is inherently unfair to low-income people. Some states are now moving to reform it or doing away with cash bail entirely. 

“The bail system determines who is free and who is in a cage based solely on access to money,” says Alec Karakatsanis, a civil rights attorney who has sued several states and cities over their bail policies. “It’s about who’s rich and who’s poor.”

The idea of bail has its roots in medieval England. Sheriffs at the time used it to prevent criminal suspects from running off during the months-long wait for a judge to visit their villages. There have always been concerns about the fairness of bail. In the U.S., the Framers included a protection against “excessive bail” in the Eighth Amendment to the Constitution. They borrowed language directly from the English Bill of Rights.

Until about 40 years ago, bail in the United States was used almost exclusively as collateral. That means it was used to ensure defendants came to court to face their charges. But a crime wave in the late 1970s led many lawmakers and judges to take a tougher approach.

“Judges and politicians didn’t want to seem ‘soft on crime,’” says Lauryn Gouldin, a professor at Syracuse University Law School in New York, “so laws were passed allowing judges to set high bail to keep people in jail.”

The result was a sharp increase in the jail population. Even people facing charges for minor, nonviolent crimes were held for weeks or months because they couldn’t afford bail.

But that approach is now under fire. Class action lawsuits have been filed in Dallas, Chicago, and other cities. These lawsuits allege that bail victimizes the poor.

In August, California became the first state to eliminate bail entirely. The law will take effect in 2019. Maryland and New Mexico also recently changed judicial rules to favor releasing people arrested for minor offenses without bail. 

Last year, New Jersey eliminated bail for minor crimes like petty theft, simple assault, and trespassing. And for more serious offenses, judges now have more leeway to release defendants not considered flight risks. The new approach has resulted in a 20 percent reduction in the state’s jail population.

“Bail reform is about justice for everyone, regardless of income level,” says Stephen Sweeney, the New Jersey State Senate president. “We’ve reduced the number of people in jail without an increase in crime. It’s working exactly like we hoped.”

But not everyone is in favor of the changes. Many in law enforcement say that eliminating bail leads to a revolving door of arrest and release. They argue that it poses a serious risk to public safety.

“A cop can’t protect the public when the guy he arrests is released before the police report is filled out,” says James Stewart Jr. of the Fraternal Order of Police. “That only creates a bad guy who isn’t worried about the police.”

He points to the case of Kareem Dawson, who was arrested on domestic violence charges and released without bail twice last year in New Jersey. In February, Dawson murdered his girlfriend and then killed himself after a police chase.

“Because of bail reform, he was out on the street,” says Stewart. “If a judge had set bail, he wouldn’t have been able to pay and would have been in jail instead of out murdering this woman.”

But reform advocates argue that those cases are uncommon. They say that most people released without bail aren’t arrested again and come to court to see their cases through.

“The public safety argument is ridiculous,” says Karakatsanis, the civil rights attorney. “Most people that can’t afford bail aren’t violent criminals— they’re simply poor.”

After Maranda ODonnell’s arrest for the expired license, she filed a lawsuit against Harris County, Texas, where Houston is located. In April 2017, a federal judge decided the county’s bail system was unconstitutional on the grounds that it treated poor and wealthy defendants differently, in violation of the equal protection clause of the 14th Amendment.

In February, a federal appeals court upheld the ruling, and experts predict the decision will encourage more challenges to the nation’s bail systems.

“There’s momentum throughout the country heading in the direction of major change,” says Gouldin, the Syracuse University law professor. “This wave of bail reform is going to continue, whether it’s through new legislation or lawsuits.”

He points to the case of Kareem Dawson, who was arrested on domestic violence charges and released without bail twice last year in New Jersey. In February, Dawson murdered his girlfriend and then killed himself after a police chase.

“Because of bail reform, he was out on the street,” says Stewart. “If a judge had set bail, he wouldn’t have been able to pay and would have been in jail instead of out murdering this woman.”

But reform advocates argue that those cases are uncommon. They say that most people released without bail aren’t arrested again and come to court to see their cases through.

“The public safety argument is ridiculous,” says Karakatsanis, the civil rights attorney. “Most people that can’t afford bail aren’t violent criminals—they’re simply poor.”

After Maranda ODonnell’s arrest for the expired license, she filed a lawsuit against Harris County, Texas, where Houston is located. In April 2017, a federal judge decided the county’s bail system was unconstitutional on the grounds that it treated poor and wealthy defendants differently, in violation of the equal protection clause of the 14th Amendment.

In February, a federal appeals court upheld the ruling. Experts predict the decision will encourage more challenges to the nation’s bail systems.

“There’s momentum throughout the country heading in the direction of major change,” says Gouldin, the Syracuse University law professor. “This wave of bail reform is going to continue, whether it’s through new legislation or lawsuits.”