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Inquiry in to the Ethical Implications of Commercial Bail

ARTICLE by Avery Leshan

Despite being relatively new, the United States’ commercial bail system is already frowned upon by the majority of the developed world.1 While commercial bail was originally intended to allow more defendants to leave jail and secure a fairer trial, it has actually resulted in discrimination against poorer socioeconomic groups and permitted dangerous offenders to roam free until their court dates. A bail system retaining only the indigent wastes taxpayer money and puts victims of interpersonal violence in danger when their abusers can afford bail. Pretrial detention results in higher conviction rates, and longer prison sentences.2 To prevent the systemic inequities of commercial bail, the U.S. legislature and judiciary should consider the flaws of commercial bail and reevaluate the modern concept of pretrial release.

I. A Short History of Bail

Like many American institutions and practices, the concept of bail originated in England. First codified by the English in 1275, the 15th chapter of the Statute of Westminster I details how sheriffs—and later, judges—should determine whether a defendant is reliable enough to be released.3 It established that everyone—except those charged with treason or murder—deserved bail and fined judges or sheriffs who did not grant reasonable terms of bail.4 Over time, the notion of money bail in the place of personal sureties increased in popularity. Although money and property were not utilized to determine who would remain in jail as they are today, the personal surety system required collateral in the form of money or property if the defendant did not show up to court.5 The English government began to see bail as 

a successful form of generating revenue and increased the price of bail over time. By 1689, money bail had become so frequent that protection from excessive bail was included in the English Bill of Rights.6 Later, the U.S. limited excessive bail in the Eighth Amendment of its own Bill of Rights, which explicitly states that “excessive bail shall not be required, nor excessive fines imposed” on a U.S. citizen.7

Another difference between bail in England and the colonies was the number of defendants released on bail. In England, a gray area developed regarding who was permitted to post bail. To determine who was eligible for bail, judges not only looked at their charges but on character and personal connections as well. The American colonies, on the other hand, took character factors into consideration only when determining the conditions of the bail and maintained a rudimentary system that laid out which crimes were bailable and which were not.8

By the middle of the 19th century, judges in both England and the U.S. could not find enough people to serve as personal sureties, and the U.S. began to deviate from other countries’ common-law systems by introducing commercial sureties in the place of personal ones.9 While initially decreasing the number of defendants in jail who could be released on bail, this fundamentally altered the concept of money bail in a way that is now considered unacceptable in England and most other countries.10

II. Conceptual Development of Bail in the U.S.

The next major legislation regarding bail was the Bail Reform Act of 1966, which aimed to decrease classism within bail decisions. However, while the legislation emphasized the right of a defendant to post bail, it permitted judicial officers to require either an appearance bond or a bail bond when they doubted the defendant’s 

trustworthiness. This allowed the racial or economic biases of a police officer to determine whether an accused person would be incarcerated.11 If defendants believed a decision was unfair, they could request a review, but their cases could only be reviewed by the judicial officer who made the original decision. This process ignored the need to hold officers accountable for racial or economic profiling.12 The Bail Reform Act of 1984 later repealed the 1966 Act, giving judicial officers greater discretion in setting money bonds and determining bail conditions.13 The 1984 Act also expanded the list of crimes, including violent crimes, crimes resulting in a life-sentence or a capital punishment, some narcotics offenses, and crimes by defendants who are considered flight- risks, that require a detention hearing. By contrast, the 1966 Act focused only on the likelihood of flight by the defendant and not their “danger” to the community.14 The new law allows judicial officers to consider a defendant's past substance abuse in their decisions to grant and specify condition of bail,15 and since poorer, minority defendants are less likely to afford bail for the same crime, it further enables socioeconomic discrimination. Although several states have since created or updated their own legislations, there has been no significant federal reform since the Bail Reform Act of 1984.16

The U.S. Supreme Court has upheld the constitutionality of the various Bail Reform Acts in many cases. In United States v. Salerno (1987), the Supreme Court held that detaining defendants before their trials without bail violated the Eighth Amendment, and that pretrial detention should not be used as a form of punishment.17 Two leaders of the Genovese crime family were arrested and placed in pretrial detention, and the family filed a lawsuit claiming the Bail Reform Act of 1984 violated the Fifth Amendment’s due process clause and the 

Eighth Amendment’s excessive bail clause.18 Chief Justice William Rehnquist, citing evidence procured by the United States District Court for the Southern District of New York, stated in the majority opinion that the pretrial detention of the two men was necessary to prevent the Genovese family from committing a future crime and did not violate the Eighth Amendment.19 This decision established that the Eighth Amendment does not always guarantee a right to bail when public safety is at risk. This ruling can be used to hold defendants accused of violent sexual crimes without bail as they pose risks to both past and potential victims.

In 2017, the U.S. Supreme Court ruled in Jennings v. Rodriguez that immigrants who may be undocumented can be detained for over six months without bond hearings or proof they are flight-risks,20 thus overturning the decisions of the District Court of the Central District of California and the Ninth Circuit Court of Appeals.21 The dissenting judges found that the decision violated the presumption of innocence and denied constitutional rights to the defendants. Later, in 2018, the Vermont Supreme Court ruled that Jack Sawyer, an 18-year-old charged with planning a school shooting, could not be held without reasonable conditions for bail. The three-judge panel stated that due to a lack of sufficient evidence to hold Sawyer, his detention without bail was unlawful.22 Despite the violent nature of Sawyer’s potential crimes, he was offered a reasonable bail, while an undocumented immigrant in the state could be held for indefinite periods without opportunity for bail. The stark contrast between these decisions demonstrates the way race (as nearly all detained undocumented immigrants are people of color), xenophobia, and 

socioeconomic background influence whether a defendant is released on bail.23

III. Continued Race and Class Discrimination

The United States’ existing bail system perpetuates systematic racial and class discrimination by determining who is released on bail and who is detained. In the U.S., 2.3 million people are in correctional facilities, 465,000 of whom have not been charged or are awaiting their trials.24 While two-thirds of those charged are non-violent offenders, many of these people are financially challenged and unable to post bail.25

Current bail policy unfairly discriminates against certain low- level offenses like drug possession and contributes to disproportionate incarceration rates for people of color. For instance, Latinx populations are more likely to be held without bail or pay higher amounts to be released on bail.26 A study by the American Civil Liberties Union of Miami further reveals that black people, on average, are detained for four days longer than white people.27 Because pretrial detentions lead to higher rates of convictions and longer periods of incarceration, poorer minorities who cannot afford commercial bail unwillingly contribute to the disproportionate rates of incarceration.28 The percentage of black people in prisons is three times higher than the percentage of black people in the total U.S. population. While the women’s prison population is currently smaller 

than the men’s prison population, it is growing twice as quickly.29 A small, critical part of female prison population growth results from privately funded prisons’ and Immigration and Custom Enforcement’s detention of 30,000 undocumented female immigrants.30 Judges rarely offer cash bail to undocumented immigrants, and when they do, it is far too expensive for the immigrants to pay without the help of non-profit organizations.31 The United States’ commercial bail system ignores protections guaranteed by the Eighth Amendment by focusing on at-risk communities, leaving the economically disadvantaged unable to prepare for cases in which they could be proven innocent.

In Philadelphia, Pennsylvania, where one-third of the prison population in 2018 consisted of people detained before trial, the city council passed a resolution to fight cash bail. The resolution aimed to mitigate the 12 percent increase in convictions of defendants who cannot afford bail by reducing the number of all pretrial detentions.32 This resolution pressures the State of Pennsylvania to join the Philadelphia City Council’s movement toward eliminating cash bail andcountering the race and class discrimination within the current method of pretrial detention.33 Since the resolution’s passage, Philadelphia has seen a 22 percent reduction in the number of pretrial detentions and a 23 percent increase of defendants released without monetary conditions. This occurred without an increase of defendants missing their court dates, proving that releasing defendants without monetary conditions does not impact their court attendance.34 

IV. Economic Impact

The existing commercial bail system places the U.S. at an economic disadvantage. Instead of giving people accused of non-violent crimes opportunities to work, support themselves, and add value to the economy, the current system incarcerates them and prevents them from contributing growth. The economic burden of incarcerating people who cannot afford bail is placed on taxpayers; on average, it costs $22,650 to detain one person for one year, whereas pretrial release programs cost about $4,000 per person.35 By decreasing pretrial detentions and increasing the use of pretrial release programs, the U.S. will save money and allow defendants to remain a part of the workforce.

V . Solutions

Dr. Shima Baughman, a national expert on pretrial detention, suggests using G.P.S. monitors for people charged with non-capital offenses to allow them to work while preventing stalking and harassment.36 A G.P.S. ankle bracelet monitor costs $6 per day, which is significantly cheaper than incarcerating someone for $83 per day.37 New Jersey banned the practice of cash bail in 2016, giving judges greater discretion to either detain or release a defendant.38 In less than a year, the prison population in New Jersey decreased by 15 percent while murder and robbery rates both decreased by 10 percent.39

In 2017, the California Senate passed a bill that eliminates cash bail in exchange for a point-based mechanism that calculates a defendant’s risk factor and determines whether that defendant is released or detained prior to their trial—except when a judge feels 

strongly that the system has evaluated a defendant incorrectly.40 Although eliminating cash bail will reduce the impact of socioeconomic discrimination on pretrial detentions and convictions, the American Civil Liberties Union and other civil rights organizations are concerned judges will have too much power in deciding whether to detain or release a defendant before trial. Allowing judges to determine the fate of a charged person before trial could perpetuate racism through their explicit or implicit biases, thereby impacting a defendant’s likelihood of pretrial detention.41 In Texas, past attempts to pass similar legislation have failed,42 but in February 2019, a new bill was introduced in the Texas House of Representatives that would reduce the number of pretrial detentions for non-violent, low-risk offenders made it out of committee.43 The yet-to-be-determined successes of California’s and Texas’ laws will likely further support New Jersey’s results: decreasing pretrial detentions will not decrease the number of defendants who show up to court. The success of these policies should encourage other states to adopt similar reforms or even prompt the passage of this legislation on a federal level.

VI. Conclusion

The U.S. needs new federal legislation that will reduce the number of people in pretrial detention for minor drug-related offenses while also keeping communities safe. The current system of bail permits judges to make critical decisions on pretrial release or detention, leaving room for human error and the continuation of racial and socioeconomic discrimination. Therefore, legislation should rely on an objective, calculated mechanism that ignores both race and class 

by focusing on the crime’s nature and the defendant’s danger to past and potential victims.

Several major federal changes will decrease the number of defendants in pretrial detention. The federal budget needs to allocate funding for tracking technology that is less gaudy, more difficult to remove, and less expensive to replace than the GPS ankle monitors currently used to track defendants. Tracking devices of this nature will decrease both the number of non-violent offenders in pretrial detention and public fears regarding pretrial release. New tracking technology will also eliminate the need for immigration detention centers, as the government will be able to locate undocumented immigrants without actually detaining them. These improvements will reduce the impact of racism, xenophobia, and discrimination against the poor and undocumented in the U.S.

The U.S. Congress also needs to pass federal legislation that will implement a point-based calculation mechanism similar to that described in California’s H.R. 1323. This mechanism should place greater emphasis on tracking defendants accused of violent crimes and lesser emphasis on minor drug offenses. By using an impartial calculation in the place of judges and police officers, the impact of racism and socioeconomic discrimination on the decision to retain a defendant in pretrial detention will decrease.

1 Shima Baughman, Costs of Pretrial Detention, 97 B.U. L. Rᴇᴠ. 1 (2017).
2 Pretrial Justice Center for Courts: Issues, Nᴀᴛɪᴏɴᴀʟ Cᴇɴᴛᴇʀ ғᴏʀ Sᴛᴀᴛᴇ Cᴏᴜʀᴛs (2013),
3 Frederic William Maitland, The Constitutional History of England: A Course of Lectures, 3 LAWBOOK EXCHANGE, 232 (2001).
4 Id. at 315.
5 Timothy Schnake et al., The History of Bail and Pretrial Release, Pʀᴇᴛʀɪᴀʟ Jᴜsᴛɪᴄᴇ Iɴsᴛɪᴛᴜᴛɪᴏɴ (Sept. 24, 2010), 6ii4zp.pdf.p6.

6 Wendy Shang, On the Long History of Bail, Pʀᴇᴛʀɪᴀʟ Jᴜsᴛɪᴄᴇ Iɴsᴛɪᴛᴜᴛɪᴏɴ (March 12, 2019),
7 U.S. Cᴏɴsᴛ. amend. VIII.
8 Id. at 6.

9 Supra note 5. 

10 Id. at 6.

11 Bail Reform Act of 1966, 18 U.S.C. §§ 3146–3152 (1966). 

12 Id.
13 Bail Reform Act of 1984, 2 U.S.C. § S.215 (1984).
14 Supra note 11.

15 Supra note 13.
16 Id.
17 United States v. Salerno, 481 U.S. 739 (1987).

18 Id.
19 Id. at 742.
20 Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
21 Id.
22 Emily Johnson & Henry Epp, On Issue of Bail, Vermont Supreme Court Rules in Favor of Jack Sawyer, VERMONT PUBLIC RADIO (April 11, 2018), https://www.vpr. org/post/issue-bail-vt-supreme-court-rules-favor-jack-sawyer#stream/0.

23 Opal Tometi & Terence Courtney, The State of Our Communities: Understanding Mass Incarceration and Migrant Detention, BLACK ALLIANCE FOR JUSTICE IMMIGRA TION,

24 Peter Wagner & Wendy Sawyer, Mass Incarceration: The Whole Pie 2018, Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴɪᴛɪᴀᴛɪᴠᴇ (March 14, 2018), html.
25 Id.

26 Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black, and White Felony Arrestees, 41 Cʀɪᴍɪɴᴏʟᴏɢʏ 3 (August 2003), 873-908.
27 Unequal Treatment: Racial and Ethnic Disparities in Miami-Dade Criminal Justice, ACLU ᴏғ Fʟᴏʀɪᴅᴀ ᴀɴᴅ Iᴛs Gʀᴇᴀᴛᴇʀ Mɪᴀᴍɪ Cʜᴀᴘᴛᴇʀ (July 2018), https://

28 Supra note 2.

29 Id.
30 Id.
31 Zero-Tolerance Criminal Prosecutions: Punishing Asylum Seekers and Separating Families, Hᴜᴍᴀɴ Rɪɢʜᴛs Fɪʀsᴛ (July 18, 2018), sites/default/files/Zero_Tolerance_Border_Report.pdf.
32 Teresa Mathew, Bail Reform Takes Flight in Philly, CɪᴛʏLᴀʙ (Feb. 2, 2018), 33 Id.
34 Aurelie Ouss & Megan Stevenson, Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail, 19 Gᴇᴏ. Mᴀsᴏɴ Lᴇɢᴀʟ Sᴛᴜᴅ. Rᴇs. Pᴀᴘᴇʀ 8 (February 2019).

35 Supra note 1.
36 Id.
37 Tribune La Crosse & Anne Jungen, GPS Ankle Bracelet Monitoring of Low-Risk Offenders Costs More than Anticipated, Gᴏᴠᴇʀɴᴍᴇɴᴛ Tᴇᴄʜɴᴏʟᴏɢʏ (May 3, 2016), Risk-Offenders-Costs-More-than-Anticipated.html.
38 N.J. Stat. Ann. § C.2A:162 (2017).
39 Ted Sherman, Why Is the N.J. Prison Population Shrinking?, NJ.ᴄᴏᴍ (September 2017), shrinking_its_not.html.

40 Cal. Pen. Code § 244 (2018).
41 Vanessa Romo, California Becomes First State to End Cash Bail after 40-Year Fight, NPR (Aug. 28, 2018), becomes-first-state-to-end-cash-bail.
42 Jolie McCullough, Courts Have Called Texas Bail Practices Unconstitutional. Will That Push This Year's Reform Efforts to Success? Tʜᴇ Tᴇxᴀs Tʀɪʙᴜɴᴇ (Feb. 4, 2019), filed/.
43 H.R. 1323, 86th Leg. (Tex., as introduced, Feb. 27, 2019), BillLookup/History.aspx?LegSess=86R&Bill=HB1323.

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