Counterpunch: Cash Bail For Non-Violent Offenders Is Costly, Harmful And Unconstitutional

This article was published by Counterpunch.

The American justice system is based on liberty, the right to a fair trial and the presumption of innocence – or so it should be. So why do we routinely incarcerate people for months or years before their trial has even begun?

The answer is money. If a judge sets cash bail for someone accused of committing a crime but they cannot afford to pay, they have no choice but to wait behind bars until their rial date. On any given day, an estimated 445,000 people are held pretrial in jails across the US – all of them presumed innocent, but all of them incarcerated. They represent a whopping 67% of the entire jail population.

Your tax dollars are going towards keeping people in jail who have not been found guilty of any crime. But even more worrying than the wasteful spending is the implications for justice.

A new study, The Hidden Costs of Pretrial Detention Revisited, exposes the harm done by keeping people in jail before their trial. Based on data from almost 1.5 million people jailed in Kentucky between 2009 and 2018, researchers found that any time spent in detention pretrial – even if only a short stretch – is bad for the public.

The study found a clear link between pretrial detention and a higher likelihood of arrest for a new crime before case deposition. Unsurprisingly, putting defendants behind bars before they have been tried did not inspire faith in the justice system, and in many cases seemed to lead to reoffending.

The cash bail system is broken. It undermines our constitutional rights – the sixth amendment specific the right to a speedy trial. The eighth amendment calls for reasonable bail and the fourteenth amendment guarantees the protection of liberty and property. By relying on cash bail and putting people behind bars because of their inability to pay up, we contravene their most basic rights.

Reforming the nation’s pretrial system is not about letting people with histories of violence go free. It’s about promoting risk-based decision making on a case-by-case basis that honors due process for the accused. Balanced reforms ensure judges and magistrates preserve individual liberty – which demands freedom from imprisonment until proven guilty – while providing the tools to protect public safety, including the use of pre-trial detention when deemed appropriate.

Keeping the public safe should be a priority for all parties but bail doesn’t achieve public safety. Jails overcrowded with defendants who pose little to no risk, who haven’t even been convicted of the crime they are being held for, and who are being kept away from their families, jobs, and communities, is the avoidable result of a system that doesn’t allow judges to find an appropriate balance between individual liberty and public safety on a case-by-case basis.

Reforming bail should be rooted in the presumption of innocence, right to due process and conservative tenets of freedom – grounded in natural rights to achieve the careful balance between liberty and public safety.  Getting this balance right is a test of a nation founded under the belief that among our natural rights are life, liberty, and the pursuit of happiness.

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