MintPress News: Does Bail Really Work To Promote Justice?

Former U.S. Attorney General Robert Kennedy once said: “What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?”

In the United States, bail — or the promise to report to court for trial and sentencing after being arraigned through the staking of property or a monetary value — traditionally imposed a different weight if one is poor than it did if one was of substance. The inability to meet a costly bond could be life-destroying. “There are hundreds, perhaps thousands, of illustrations of how the bail system has inflicted arbitrary cruelty:” President Lyndon Johnson remarked during the signing ceremony of the 1966 Bail Reform Act, which established the right to an affordable bail for most offenses. The Bail Reform Act has been amended and rendered mostly inert in following administrations.

“A man was jailed on a serious charge brought last Christmas Eve. He could not afford bail, so he spent 101 days in jail until he could get a hearing. Then the complainant admitted that the charge that he had made was false,” the former president presented as one example.

In other examples presented by Johnson, “a man could not raise $300 for bail. He spent 54 days in jail waiting trial for a traffic offense for which he could have been sentenced to no more than 5 days. A man spent 2 months in jail before being acquitted. In that period, he lost his job, he lost his car, he lost his family — it was split up. He did not find another job, following that, for 4 months.”

As Johnson explained in further remarks, the bail system is designed to allow those with resources to “buy his freedom,” while those who can’t afford the price must linger in jail. Bail is not punishment but a motivation to reappear in court — what this creates is a wealth-based de facto imprisonment regime ignorant of a person’s actual guilt.

As reported in the 2010 Human Rights Watch report “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” among 2008 arrestees held for bail set at $1,000 or less, 87 percent were incarcerated for failure to pay their bonds, spending, on average, 16 days in detention for mostly nonviolent minor offenses — like turnstile jumping, smoking marijuana in public and small-quantity drug possession. As reported by the Christian Science Monitor, of the approximately 500,000 individuals awaiting trial throughout the United States, roughly 80 percent are in detention due to a failure to make bail.

When taken in consideration that most of the nation’s poor prisoners are Black, this presents a true problem to the health and stability of an entire population.

By Frederick Reese