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America’s Bail System Needs To Be Reformed

In case you missed it last week, National Public Radio ran a fascinating three-part series on America’s bail system.  The whole series is available here.  If you happen to have some free time on your hands, you should definitely check it out as it does an amazing job of pointing out how messed up on country’s legal system can be if you’re poor.

The NPR report points out a number of deficiencies with the way America’s bail system is currently set up.  The problem is essentially one of access and the disparities in treatment received by those with money versus those who are lacking in it.

Basically, in America when someone is arrested for a crime, that person is placed in jail until the time of their trial.  This isn’t true for all criminal offenses as laws vary from state to state; however, typically for most felony level offenses the defendant is placed in jail until their trial begins.  The only option for defendants in this situation is to either wait it out in jail or post bail, but without money, jail it is.

The rationale for this holding system is that for those who commit serious offenses, the judicial views these suspects as more likely to try and flee formal prosecution because of the heavier consequence they face compared to those who commit infractions or misdemeanors.

Now certainly the government’s fears aren’t completely unfounded.  A felony conviction carries real prison time, very high fines, and also damages a person’s record, which makes it harder for the convicted defendant to get a job and even qualify for loans.  There’s a lot more reason for someone facing these possibilities to try and run away from police custody versus those who commit lesser offenses.  Forcing them to post bail for their release guarantees that the government can at least recoup some of their losses from having to expend resources to track and re-arrest a suspect who flees the court’s jurisdiction.  It also provides some incentive for the suspect to stay and fight their case as an innocent verdict will entitle the suspect’s bail payment to be returned to them.

However, the problem is that most people arrested for felonies generally don’t have enough money to afford to post bail.  And if you think it’s because bail is overly expensive, you’d be mistaken.  Certainly, bail can be high, but for destitute people, even a couple of hundred bucks can be enough to keep them from being released.  The current bail system can devastate a person’s life, especially the working poor – those with jobs who get paid only enough to survive.  For these people, not being able to post bail prohibits them from working at their jobs and can often cause them to lose their employment and livelihood.  This loss not only hurt the arrestee, but also their loved ones who depend on their income to live.

It’s a heartbreaking situation that’s compounded all the more by the bail bond industry, which for most felony offenders is the only place to turn to for bail money.  Bail bondsmen loan defendants the money needed to post bail.  The catch is that they do it at a high interest rate.  However, if the defendant is found innocent, the loan is returned to the bondsman from the court.  But, as you all are probably already aware, our legal system is quite congested and most criminal cases are dealt with via plea bargaining where the defendant accepts a guilty or no contest plea in exchange for a reduced sentence.  This may be a faster way for the defendant to return to his or her life, but pleading out in this way means that they are now responsible for paying back their bail bond with interest.

The NPR report suggests the better way to handle felony defendants is the get rid of the bail system altogether and use alternative means of monitoring such as ankle bracelets.  This would be much cheaper for tax payers whose money would otherwise go toward housing and feed the suspect while they’re in jail, and it would also allow the suspect to return to their normal lives.  I certainly agree with NPR’s sentiments and support greater use of alternative monitoring for suspects.

However, I wouldn’t go as far as supporting a complete abolishment of the bail system; rather a better way to go about it would be to merge the two monitoring methods.  This can be accomplished by modifying the traditional bail and ankle bracelet systems to be offense-specific.

For instance, more serious crimes, such as manslaughter should require the posting of bail and possibly even an ankle bracelet depending on the crime’s severity.  Lesser felonies on the other hand, such as grand theft, should only require an ankle bracelet and no bail.  This system would ensure that only those accused of serious crimes be subject to the higher bail requirements, while leaving non-violent offenders free to return to their lives while they await their trial.

Now certainly there is always the possibility that an innocent person wrongly accused of a serious felony could end up having their life destroyed under this system.  However, compared to the current system where every felony offender, regardless of their felony’s severity, faces this possibility, the modified system proposed here would ensure that a lot less innocents endure such an injustice.

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