Jan 30, 2008

Abolish Our Discriminatory Bail System

In an article by Adam Liptak, published on January 29, 2008 in The New York Times, I learned that only the United States and the Philippines have legal systems that use for-profit bail companies as a means of assuring that criminal defendants will appear in court.

According to the article, all other developed countries, as well as Illinois, Kentucky, Oregon and Wisconsin, provide a way for people presumed innocent to achieve their liberty pending trial without feeding a commercial bonding intermediary. Once again, this country that prides itself on its justice system lags far behind the rest of the civilized world -- as it does, for example, with capital punishment and life imprisonment for minors.

How the bail system works. For those not in the know, here is how the bail system works in most states.: When you are arrested, you can usually avoid spending the night in jail by paying a bail bond company a 10% non-refundable "premium" in exchange for the company posting a bond with the court for the full amount of the bail. The amount of the bail is typically based on a local bail schedule.

For instance, the bail in my county for common misdemeanors is $5000, and between $10,000 and $25,000 for felonies. Most people who are arrested for the first time are shocked at their lack of freedom and will do anything to get out right now. Friends and family are pressured to pay the premium, yesterday.

If you are released on bail, you're typically given an arraignment date (first appearance) a month or two in the future. If you don't "make bail," you'll stay in jail until you're taken before a judge a day or two later (or even three or four days if you're arrested on a Friday). At this first appearance, the judge can raise or lower the bail, or even let you go on your promise to return. All too often, however, the bail is either raised or remains the same, and the defendant remains in jail until trial -- which must be held within a couple of months, unless the defendant "waives time." Often, encouraged by their public defender, who invariably has a heavy caseload, defendants end up waiving time and remain in jail for many months before they get their day in court.

The problem with the system. The shame of this system is highlighted by the fact that people accused of misdemeanors can frequently escape further imprisonment by entering into a plea agreement for probation and a fine. And, it's not uncommon for people who insist on their innocence to languish in jail awaiting trial for crimes that predictably will not involve jail time even if there is a conviction. Keeping someone in jail because they can't make bail on a charge that is highly unlikely to result in imprisonment is nothing less than depriving people of their freedom solely because they are poor.

Allowing private companies to determine whether a defendant goes free pending trial is often tantamount to determining the trial's outcome. Defendants who are free pending trial have a tremendous advantage over defendants who must prepare their defense while behind bars. Justice that depends upon one's ability to pay for a bail bond is injustice at its core.

Even the legal establishment disapproves of the system. According to Adam Liptak, "[m]ost of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system."

Obviously, I agree. The Eighth Amendment to the U.S. Constitution should be further amended to provide that bail be administered solely by the justice system, rather than by the private sector, as it is now.