Last Updated on September 1, 2024
Like most things, cash bail has pros and cons, but when you look at the data, evidence suggests eliminating it would benefit society overall. In California, we were lucky to get a chance to see how putting an end to cash bail could work when the state instituted a zero bail policy in an effort to clear out the jails of non-violent offenders as much as possible during the pandemic. The result was that while a few individuals released while awaiting trial went on to commit more crimes, these instances were statistically insignificant. The California Supreme Court has ruled that individuals can’t be left behind bars simply because they cannot afford to pay bail, but the state’s cash bail system remains in place. Ultimately, it is only a matter of time before California eliminates the current cash bail system. While the issue is complicated, there are many pros and cons when it comes to eliminating cash bail.
Cons of Cash Bail
When looking at the benefits and drawbacks of bail, it’s easy to see that the biggest downside of having a cash-based bail system is that it is inherently biased toward the wealthy who can afford to pay bail. Middle-class citizens may have to deal with a bail bond company (who will generally charge 10%), and the poor may are often left behind bars because they cannot afford to pay upfront or commission a bail bondsman to be released. Eliminating cash bail puts everyone on equal footing and ensures high-risk offenders who can afford bail are not allowed free, while low-risk defendants who cannot are left behind bars.
While it’s possible to obtain a bail reduction or to be released without bail with the help of a criminal lawyer, defendants that go this route still often have to pay some amount of the bail and stay in jail until an agreement has been made in court. Those who have to wait in jail because they cannot afford bail often end up losing their jobs, falling behind on their bills, and may even have their property repossessed —making them face even more financial hardships than simply being unable to afford their bail. These consequences have even led some people (many of whom are innocent) to accept unfair plea bargains just so they can be released from jail and get back to their everyday lives.
To make matters worse, because so many people find it difficult to post bail, cash bail systems leave more people behind bars. Requiring non-violent offenders to remain in jail before their court dates contributes to jail overcrowding and the worsening of conditions in local jails.
Cons of Bail Reform
But there are cons to turning to universal pre-trial release as well, and making dramatic changes to the bail system isn’t an overnight process. It can be difficult to find a solution that eliminates the problems of our current system without adding new problems. The main risk in eliminating the bail system altogether is that some dangerous criminals may be rereleased —potentially causing a threat to public safety.
In New Jersey, for example, a man murdered someone just days after his release under the state’s reformed bail system. While those against bail reform tend to point to examples like this to support his argument, studies show most defendants currently held pre-trial would not be a danger to the public with proper monitoring.
Pros and Cons of Pretrial Release
Most states that have eliminated the financial bail system have instead turned to a system that allows the judge to evaluate someone’s flight risk and danger to the public based on their own knowledge and experience and an algorithm based on artificial intelligence (similar to the ones used to help determine sentencing). As you might imagine, there are many advantages and disadvantages to reforms of this type.
While some have criticized this new approach and warn that it puts the public in danger, often pointing to cases like the murder in New Jersey as an example, proponents of the new system argue that potentially dangerous criminals can still be set free under a cash-for-bail system. While bad things can happen under either system, this new technique doesn’t leave the poor behind bars while the rich walk free after paying bail.
Aside from eliminating class divides in the justice system, another major benefit of bail reform is the ability of judges to speed through pretrial hearings. In the past, judges would have to determine if someone was eligible for bail and, if it was granted, determine a fair value based on the arguments of the prosecutor and the defense attorney. Under the revised system, they can now look at the defendant’s flight risk and their risk of reoffending, and then decide whether someone should be released or kept behind bars. The sooner judges can process these pretrial hearings, the more quickly defendants can be moved through the system and the faster they could be released.
A final benefit to eliminating cash bail is that some bondsmen refer defendants to specific defense lawyers based on financial payoffs called “capping.” This practice is illegal and could get a lawyer disbarred, but it is rarely prosecuted. Bail reform protects criminal defendants from being referred to lawyers based solely on payoffs, not competency.
If you have any questions about the benefits and drawbacks of cash bail, bail reform, or how things may change after changes have been implemented, call (760) 643-4050 or (858) 486-3024 to scheudle a free consultation with Peter M. Liss.
