Judges often apply money bails arbitrarily, which leads to unjustified inequalities. Indeed, when the system uses finances to determine pretrial detention, it is possible for two defendants to get vastly different outcomes. The research paper focuses on understanding how the cash bail system exploits indigent people in America and results in endangering individuals with misdemeanor infractions and producing more overcrowded corrects systems. This is possible through how the cash bail system exploits indigent people in America and results in endangering individuals with misdemeanor infractions and producing more overcrowded corrects systems. This is possible through a policy analysis approach involving a review of the relevant facts, and identification of what the researcher believes to be the major ethical issues and the relevant underlying values of each opposing side. The disparities in pretrial outcomes have far-reaching implications, as even short periods in jail can affect defendants’ housing, child custody, and employment status among other social aspects. Pretrial detention also has implications for the suspect’s ability to ensure an effective defense. Accumulation of these outcomes for individual cases, the improper application of money bail leads to high rates of unnecessary incarceration and contribute to deeper disparities based on socio-economic statuses of defendants. Moreover, the detention of suspects because they cannot afford money bail is unethical and goes against constitutional provisions.
The bail system in the United States presents challenges and opportunities for policy reforms because of underlying ethical issues. Actors in the justice system use bail in the pretrial process to prevent or minimize violation of defendants’ fundamental rights and assure attendance of court sessions. However, despite the good intention of the mechanism, courts across the country use money bail to ensure detention of suspects before trial. The problem affects indigent people who remain in jail because they cannot afford the amount of bail. Consequently, many states in America experience an indefensible situation as the system jails many people because pretrial outcomes are based on defendants’ economic status.
Recent advocacy campaigns created momentum across the United States for reviewing operation of the pretrial process, especially application of the money bail system. Litigation in different places resulted in the declaration of pretrial detention based on finances as unconstitutional, which resulted in calls for policy changes. Media attention on money bail enhanced scrutiny of current practices. The development adds to previous assertions from advocacy groups and justice experts for fundamental reforms targeting the cash bail system. As the attention of policymakers turns to ending mass incarceration, pretrial administration presents one way of reducing the number of people being held in detention centers.
Review of Relevant Facts
Understanding the Money Bail System
Following the arrest of an individual, prosecutors present him or her in court, where the judge determines whether to release the defendant before trail and the necessary conditions. According to Hawk and Director (2016, p. 4), ” the judge may release an accused solely on a promise to appear, release the individual under certain conditions that are tailored to ensure a person returns to court, or impose a requirement that the person pay some amount of bail – an amount of money deposited with the court intended to guarantee that the person returns for future court hearings.” In case the judge chooses bail, it comes in the form of money or a surety of the same amount. The suspect pays the money to the court, which is refundable following appearances and completion of the case as required.
Cash bail can be in the form of an unsecured bond or appearance bond. An unsecured bond involves a promise by the defendant to pay the set amount if he or she fails to attend court hearings. On the other hand, an appearance bond the accused pays the court up to 10% of the total amount determined by the judge. Considering that most defendants cannot raise the money required for bail, the court allows other forms of payments, including surety bonds. Surety bond in the justice system is a promissory note issued by a bondsman to the court guaranteeing payment of the bail amount in case the suspect fails to appear for court hearings. Current practices in the United States use surety bonds as the most common types of cash bails.
Money Bail System in the United States
Money bail is a major part of the criminal justice system in the United States. According to Yang (2017),although judges should not use financialability to detain or release a suspect before trial, it is exactly what is happening in many states across America. The system holds many people behind bars before trial simply because they cannot afford the amount of cash bail set out by the judge. As Neal (2012)noted, more than 60 percent of incarcerated people have not being found guilty of any crime. They stay in jail because they cannot pay money. The high rates of detention before trial in the United States persist despite the constitutional mandate for judges to release suspects as they await trial. Existing Practices that see many people behind bars before trial go against the fundamental human rights and constitutional provisions regarding the presumption of innocence until proven guilty. Consequently, courts often treat suspects as convicts simply because the accused cannot afford bail.
Judges in the United States often set cash bail amounts that are far beyond the reach of many suspects. Indeed, the decisions do not consider the ability of the accused people to pay based on their resources and financial circumstances. The practice is a clear demonstration of the glaring reality in the criminal justice system for suspects facing charges before courts. It is systems, which applies differently for the poor and the wealthy. Consequently, the process is unethical and unconstitutional because the “two-tiered approach denies justice to individuals, undermines the fairness of the court system, and imposes unacceptably high costs on the accused, their families, and our communities” (Hawk & Director, 2016, p. 5). The system also goes against measures and advocacy campaigns over the years calling for reformation of money bail and prevention of unfair application.
The injustice of the cash bail system keeps getting worse in some states. According to Hawk and Director (2016, p. 6), “since 2000, 95 percent of the growth in the overall jail inmate population in the U.S. was due to the increase in the number of people in jail awaiting trial.” In addition, recent years witnessed a significant increase in the amount of money bail set by judges. Noteworthy, many of the suspects who go behind bars before trial face low-level crime accusations. The original intention of bail was for courts to impose reasonable amounts to ensure the accused people attend court proceedings after pretrial release. However, the system has been applied in ways that impose excessive financial strain on defendants, which, in turn, prevents respondents from getting out of detention centers pending the determination of their cases.
The decision of a judge to release an accused individual before trial is among the most important determinations in a case. This is line with assertions that incarcerating defendants hampers their chances of fair and just trial outcomes. Individuals in detention centers are less able to help their attorneys to prepare an effective defense. Judges who set cash bail amounts before suspects can obtain or be assigned advocates to work for their release worsen the problem. “Individuals jailed even for a few days before trial are more likely to receive a sentence of jail or prison, and for a longer time, than those who are free before their trial” (Hawk & Director, 2016). Indeed, spending time in jail could prevent trials from taking place, which comes with detrimental implications for individuals, families and communities. This is consistent with the discussion that “the loss of income, possible loss of employment and housing, disruption of prescribed medications, and stresses on one’s family that accompany incarceration have induced many defendants to accept a plea bargain to get out” (Hawk & Director, 2016). The situation is worse for minority groups who experience unique social and economic challenges other than those in the criminal justice system.
Minority groups and other vulnerable individuals face the greatest risk from unfair application of cash bail. According to Johnson and Johnson (2012), unfairness of the bail system affects people of color, poor communities, and individuals with certain disabilities disproportionately. The individuals stand an increased risk of being incarcerated before trial, which incases the probability of being convicted and jailed. This underscores the significance of implementing measures and policy reforms to protect minority groups and vulnerable populations in the United States of America.
Courts and actors should consider other means aside from money bail to ensure the appearance of suspects at future proceedings. For example, “Courts can impose non-financial conditions such as reporting to a pretrial services office or maintaining employment, training, or education routines to keep track of persons awaiting trial” (Hawk & Director, 2016). Following this example, courts systems in different jurisdictions across American implemented alternative measures in addition to developing better, fairer, and more just pretrial processes. The developments also resulted in nation-wide movements aimed at minimizing the costs associated with overcrowded jails and pretrial detention. The intention is to design new pretrial systems in line with constitutional provisions, human rights, justice, and ethical principles. Indeed, it is time to implement policy changes on cash bail practices in the country, which would enhance effectiveness, fairness, and integrity of the criminal justice system in the United States.
Major Ethical Issues
Ethical issues in the current application of cash bail in the justice system arise because the practice is unfair, presents an uneven playing field, and the detention hurts individuals, their families and communities.
Unfairness of the Cash Bail System in the United States
Jails in the United States are filled with suspects without conviction of crime. The overpopulation in the centers is mainly down to an increase in the number of pretrial detentions. As discussed previously, most of the pretrial cases involve indigent people in the United States accused of misdemeanor infractions. Despite court rules across jurisdictions presuming the release of defendants and considering bail as a measure of last resort, judges often act in disregard of justice procedure and rely on money assurance as the first and only option. This makes the process unfair and unethical in three ways. Firstly, cash bail is out of reach for many Americans as it comes as an emergency in most cases. Aside from failure to follow court rules that presume the release of suspects, courts also constantly increase the amount of bail, which makes it prohibitive for many in the population thereby impeding the ability to attain justice.
Secondly, the system is unethical as indigent people in America often lack attorneys to advocate for them in the initial appearance before court. This is because in the first appearance, which is used mostly to determine bail terms, the appointed lawyer does not have sufficient information to convince the court about releasing the respondent on cash bail. The development makes it unfair and unethical as the direction of the cause is set at the initial stage. Thirdly, indigent people, especially those of color and disabilities have a high likelihood of being held because of failure to raise the required money. “Assumptions based on a defendant’s appearance, background, or ethnicity may unconsciously and erroneously lead a judge to determine that an accused person is more likely to fail to appear in court or pose a danger to the community” (Hawk & Director, 2016). The point is consistent with rates of incarceration for people of color and those with disabilities compared to others. These practices are unethical, as they do not determine reliably whether the accused would appear in court.
Uneven Playing Field
The use of money bail in the criminal justice is unethical because of an uneven playing field caused by jailing people before trial. Firstly, pretrial detention lessens the ability of detainees to assist their attorneys in implementing an effective defense. The unethical nature of the practice results from less interactions between the lawyer and client during trial preparation, and case investigation, which puts the defendant at a disadvantage. Secondly, pretrial detainees are more likely to be convicted than those conducting their cases from outside. According to Criminal Justice Policy Program (2016), the problem is magnified in cases of individuals with misdemeanor infractions, as they feel the pressure to plead guilty as a way of getting out of jail. “Even if a person did not commit the offense charged, defendants may view it to be in their interest to plead guilty with credit for time served instead of being jailed for months awaiting trial” (Hawk & Director, 2016). Noteworthy, the suspects take this option regardless of implications for employment, housing issues, and financial instability among other aspects related to convictions.
Thirdly, pretrial detainees are less likely to get a trial, which goes against constitutional requirements for fair trial. It is also unethical because sometimes the prosecution may call for releasing of suspects for lack of evidence. The person would have suffered jail for crimes they did not commit. Similarly, detainees may be pressured to plea agreements to avoid spending more time in jail than they would through actual convictions for low-level misdemeanor. Finally, the process would more likely result in harsher sentences for indigent people than those with the ability to pay cash bail.
Adverse effects on Individuals, Families, Communities
Pretrial detention of indignant people is unethical because it hurts individuals, their families, and communities in five fundamental ways. Firstly, incarceration causes stress because of the isolation and worry with adverse effects on the people’s mental health. Pretrial detention magnifies the problem because suspects have minimal control of their social and economic affairs. Secondly, jailing before trial is unethical because it causes financial challenges resulting from loss of employment, housing, education, and public benefits. Thirdly, pretrial jail is harmful to children because of the resulting separation, which can lead to fray relationships and strain communication. A jailed parent may lose children’s custody with lasting social and psychological problems. The young ones’ education is disrupted because of incarceration, which compels them to take on new roles, such as domestic, financial, and emotional support. Fourth, pretrial detention is harmful to families because of financial and emotional strains. Finally, detention is harmful to the health and wellbeing of people because of non-existent, limited or inadequate care services.
To fulfill the constitutional guarantee of presumption of innocence until proven guilty, and address ethical concerning in the existing cash bail systems, it is important for stakeholders to ensure financial resources should not be the basis of determining detention. In that regard, the recommendations for this discussion are based on idea that pretrial jailing should not be based on money. Successful implementation of this position requires a paradigm shift among stakeholders, especially courts and judges. There is growing advocacy for the reduction of the costly detentions before litigation, overcrowded jails, and the development of new policy guidelines for pretrial systems.
The following recommendation are vital for ensuring reformation in the pretrial system of the United States. First, it is important to eliminate or minimize dependency on cash bail as the basis for detaining or setting suspects free. Second, the criminal justice system should ensure the accused people have timely legal representation before courts initiate hearings. In that regard, judges should not set bail conditions before defendants have competent legal counsel. This would ensure the availability of sufficient information to make just, fair, and ethical decisions on whether to release or hold respondents. Third, the system should develop less restrictive options besides pretrial detention. Fourth, given technological advancements, courts and create application protocols to remind defendants about pretrial programs and appearance dates. Such programs should be provided at the initial phase of a case and facilitate effective monitoring of suspects who are awaiting trial. The reminders are fundamental for reducing failed appearances and unnecessary warrants. Fifth, courts should collect pretrial data extensively to analyze various performance metrics and find out race and other disparities that could influence cash bail decisions.
The existing cash bail system has inherent ethical issues that require stakeholders to seize the moment and implement the necessary forms to deal with the problem of overcrowded jails and address challenges for individuals, families and communities. The discussion highlighted major issues associated with the United States’ approach to the pretrial system, which call for fundamental change. Various observers and advocates point to shortcomings in the application of cash bail. These campaigns and trends should be encouraged for further action. Attaining the right balance requires careful focus by stakeholders to address the policy, ethical, and legal questions outlined in this discussion. Based on these considerations, and informed by community needs and opportunities, it is vital to take a new direction for pretrial justice that promotes ethical practices and the highest ideals of the country’s legal system and ensure efficient, just, fair and consistent administration of justice.
Criminal Justice Policy Program. (2016). Moving beyond money: A primer on bail reform.
Hawk, J., & Director, L. S. (2016). No Money, No Freedom: The Need for Bail Reform, 1-10.
Johnson, M., & Johnson, L. A. (2012). Bail: Reforming policies to address overcrowded jails, the impact of race on detention, and community revival in Harris County, Texas. Nw. JL & Soc. PoL’y, 7, i.
Neal, M. (2012). Bail fail: Why the US should end the practice of using money for bail. Washington, DC: Justice Policy Institute. Yang, C. S. (2017). Toward an Optimal Bail System. NYUL Rev., 92, 1