Why is the US still heavily relying on cash bails?

Question

According to this article there seem to be serious downsides to heavily usage of money (cash) bails (emphasis mine):

In effect, the cash bail system criminalizes poverty, as people who are unable to afford bail are detained while they await trial for weeks or even months. Cash bail perpetuates inequities in the justice system that are disproportionately felt by communities of color and those experiencing poverty.

Spending even a few days in jail can result in people losing their job, housing, and even custody of their children. Studies show that pretrial detention can actually increase a person’s likelihood of rearrest upon release, perpetuating an endless cycle of arrest and incarceration. What is more, the cash bail system often leads to the detention of people who do not pose a threat to public safety.

This PolitiFact article explains the uniqueness of US bailing system:

"only the U.S. and Philippines have a cash bail system that is dominated by commercial bail bondsmen." This makes a difference because a commercial bail industry has a financial stake in the system.

Money bails are also used in other countries, but it seems to be less systematic than in US or at least in a way that does not make it so unfavorable for the poor:

In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the suspect will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge.

I am wondering why does the US still use this type of bail system despite its apparent drawbacks?

Answer 1

• Bails are a big industry which lobbies legislators to protect their business model.
• It is traditional, and there is widespread belief in American Exceptionalism -- a refusal to consider that the US might learn anything from other countries.
• The US is unusual in the degree to which it disenfranchises convicted felons, and also to the degree in which it blackmails suspects into plea bargains, so people who run into the system can't vote against it any more.

Answer 2

I am wondering why does the US still use this type of bail system despite its drawbacks?

I think many cultural aspects of the different countries make this a more nuanced and difficult issue than it might seem to one side or another of the debate.

It must be said that the US is very much a capitalist country. As such it is focused on personal wealth (or monetary value if you prefer). The bail system reflects this. Rather than using the bail system to restrict (alleged) offenders, it sets a (mostly) monetary value on offender and the crime allegedly committed.

As it is presumed in a capitalist system that people are also focused on wealth retention, the presumption of such a system is that they will attach significance to any risk of loosing bail money.

The biggest flaw is that there is a system of bail bonding. This undermines the whole basis of risk of loss as a punishment, as skipping out on bail will typically affect other people more than the offender.

As noted on the relevant Wikipedia page the has been significant movement towards what is referred to in the US as pretrial supervision. That is to using using electronic tagging and e.g. house arrest or movement restriction orders to effectively limit the activities of accused offenders prior to trial.

In effect, the cash bail system criminalizes poverty, as people who are unable to afford bail are detained while they await trial for weeks or even months.

Playing Devil's advocate I would say that the logic behind this is to increase the desire to obey laws in the first place and to not risk offending. That said, even that interpretation leads to the problem that those with wealth can view the imposition of bail as an inconvenience and not as significant a risk as an "ordinary" person would experience. It also seems to fly in the face of innocent until proven guilty as potentially you suffer a great deal for being innocent.

Studies show that pretrial detention can actually increase a person’s likelihood of rearrest upon release

Again playing Devil's Advocate, it could be argued that the study might be showing that those most likely to be detained are correctly identified by this system as repeat offenders. Or to put it another way, the study could arguably be said to support the idea that those not getting bail are also those most likely to be repeat offenders and it's not a fault with the system, but a feature. I suspect the devil is in the detail here and the situation is more nuanced and more "a little from column A and a little from column B" than "A or B".

In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the suspect will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge.

Many people in the UK (and my own similar country Ireland) would be extremely unhappy with the lack of detention for bailable offenses. Even in the case of repeat offenders quite lax bail conditions are often set in these jurisdictions and offending while on bail is perceived as quite common. It is quite difficult to work out whether that public perception is fair or not (e.g. this parliamentary question answer in the UK does not really deep dive the figures). It is however clear that in the 2012 stats quoted some 121,000 offenses were committed by people on bail for other offenses that year. That's a significant number given the UK's population. Of the order of about 90% of crimes in the UK do not lead to prosecution and there are of the order of about 5 million crimes reported. This would suggest about 450,000 prosecutions of which the bailed offender's figure would all (if I understand this correctly) be part of, or about 25% of all prosecutions are for offenses committed on bail in the UK.

So while the US system may seem to punish people unfairly, if looked at in the light of UK crime stats, there could be an argument that the US system is doing its job. Again not taking sides here, just presenting the counter-argument for the US system.

Again I think the nuances of this are far more subtle in practice in all jurisdictions than bare headline stats might suggest. For example, a distinct difference between UK/Ireland and US law is the severity with which DUI and DWI offenses are treated. In the US this is treated as a much more serious offense (generally) than in the UK and Ireland, where they are (barring serious injuries or damage) treated as offenses that result mostly in driving bans and fines, even for repeat offenders. On the other hand the US attitude to "minor" gun offenses would be considered quite strange in the UK and Ireland. So a great cultural gap exists which the stats will hide in many cases between countries.

So a lot of cultural attitudes are at work in forming the US attitude to bail and it could be argued that for the US it does what it is supposed to (Devil's Advocate) and that e.g. the UK/Irish system which seem more "humane" are also more unfair to victims.

Answer 3

According to "The Economics of Bail and Pretrial Detention" by Liu, Nunn and Shambaugh (https://www.hamiltonproject.org/assets/files/BailFineReform_EA_121818_6PM.pdf),

The primary purpose of bail is to ensure that defendants successfully show up to court when required. Beginning in the 1970s, the use of bail was expanded to address public safety concerns (Dabney, Page, and Topalli 2017). As mentioned above, commercial bonds tend to be associated with the highest court appearance rates, followed by cash bonds, which are in turn followed by nonfinancial release (Clipper, Morris, and Russell-Kaplan 2017; Helland and Tabarrok 2004). These relationships are consistent with the incentives of the bail bonds agents and defendants.

(emphasis added)

The cash bail system continues to be used (despite its flaws) because it works.

Answer 4

I heard a long time ago the system (getting a bail bondsman) had the following advantages:

• You put in money, so you have a slight incentive to appear at the trial
• Relatives co-signed the bondsman, so there was more incentive
• the bondsman had a huge incentive for you to appear in court, so they will get a bounty hunter to track you down (story plot of 'the fall guy')

And I hear the bounty hunter system solved the problem that they were allowed to operate nation wide, so if you ran of to a different (US) state the police couldn't arrest you, but a bounty hunter was allowed to do so.

I don't know if this is still true.

Answer 5

Bail doesn't introduce a bias of legal representation, i.e. more resources allocated to prosecution/defence.

European justice also criminalizes poverty: A rich person can afford a better team of lawyers, who find witnesses and evidence everywhere. If there is a robbery, criminal violence, corruption in EU nations, a defendant can have 20 times more legal funds than a plaintiff. That is the true reason for criminalizing poverty.

Reasonably, a defendant and a plaintiff should have the same lawyer budget, else the court is flawed.

If the US justice system for small crimes is corrupted by money, bail isn't a specific cause of bias. If "a reasonable doubt" actually worked in real life, so that evidence is not fabricated, the imprisoned party would never lose the bail money.

The true issue is why a reasonable doubt ideal doesn't work and why money guides law more than citizen issues.

Answer 6

Allow me to reframe the problem, since I don't subscribe to propaganda.

I'm not convinced that a cash-bail system in and of itself is the problem.

The problem has several facets, but here are a few:

1. A lack of suitable alternatives. There is no reason to change our methods from one faulty system to another faulty system. These other nations you talk about are not better, just different.

2. Tradition. The fact is, that is how our system operates. Change is difficult even when it makes sense. Change for changes sake alone is not progress. To completely upend the system would be a shock and it would cause a confusing transitional period where injustices may indeed be greater, as bugs are hashed out. A change needs to be gradual and natural, and each step in that transition needs to be compatible with the previous system. This progress must be tested and verified to work. It's a slow process. It IS something being actively worked on. But just because there isn't overnight unverifiable "progress" imposed through authoritarianism does not mean change isn't happening.

3. As you pointed out, we have a bail bond industry. For government to come in and undermine this industry, these companies, would be a level of government involvement in the economy not suitable for a capitalist nation. You can't just write legislation that destroys an industry overnight.

4. It would be unfair and unjust to set different levels of bail for different people for the same crimes. The wealthy can afford to pay out of pocket. The bail bond industry, like the student loan industry, exists to give the people who can't afford to pay out of pocket an equal opportunity. No one is disenfranchised for not taking out a bail bond... that is their choice, because they know they are guilty and they know they won't be able to pay back their loans.

5. And, coupled with (4), we being a capitalist nation, money is the driving force. You're not going to sway anyone with a slap on the wrist or a down vote on social media. This might be the UK way but it wont work. Cash bonds exist as an incentive that all citizens have a vested interest in.

6. To the contrary of the Constitution, individuals are incarcerated prior to a guilty verdict, should one opt not to pay bail. That is admittedly a problem but it is the only one that I truly see with the system.

7. My suggestion is simple... let everyone go free after arrest, but place a GPS tracker on their ankle, keep a watchful eye on them. Especially if a flight risk or a danger to witnesses, include proximity sensors to places and people they shouldn't be near, and be ready to swoop down on them with a lethal force. We can implement the GPS tracker on people who choose not to pay bail until we phase out bail entirely. Race is entirely not a factor. In this way, poor and rich are treated equally, there is no economically-based disparity. No one is incarcerated without trial, witnesses are protected, and the accused can live life getting their things sorted.