OVERHAUL OF THE
CA$H BAIL BOND SYSTEM By Stephen H. Gordon
A
person charged with a crime is typically arrested and taken to jail. The accused will sit in jail until the case is resolved unless he or she is able to make bail. In most situations, the defendant must raise a sum of money to pay the bail amount or pay a bail bond company to put up the money. This type of system is referred to as the “cash bail” system. According to the Bureau of Justice Statistics, each year police make on average over 10 million arrests.1 Approximately 555,000 of those arrested people will be stuck in jail awaiting trial because they lack the financial resources to post bail.2 Most of these arrests are for nonviolent crimes.3 Arrests related to drug abuse constitute the single largest category of arrests.4 The system for determining how to release arrested people dates back to medieval times.5 Reformers say it is time to update it for the twenty-first century. Little by little, states are starting to institute bail reform, and in some cases do away with cash bail altogether.6 New York, New Jersey, California, and Alaska have led the way.7 Illinois, Indiana, Nebraska, Ohio, Wisconsin, and several other states have followed suit.8 The cash bail system discriminates against the poor and favors the rich. Statistics demonstrate that access to money is the primary determinant of whether a person is released from jail while awaiting trial. This factor is actually more influential than the severity of the alleged crime. Critics of the cash bail system argue that the main focus should be on the alleged crime and the person’s likelihood to show up for court, rather than the ability to pay a specific bail amount. Recently, a group of detainees who had been denied release from jail for failure to pay their bond amounts sued Harris County, Texas, in federal court.9 They alleged that the county’s current bail system was 8 San Antonio Lawyer | sabar.org
The cash bail system discriminates against the poor and favors the rich. unconstitutional and violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses.10 The district court held a hearing and made several key findings about the link between being poor and being stuck in jail, rather than having the chance to bond out. The court noted that “under the County’s risk-assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”11 The detainees won their case at the district court level, but Harris County subsequently appealed.12 In ruling in the detainees’ favor, the district court stated that “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.”13 The United States Court of Appeals for the Fifth Circuit affirmed the ruling, with some modifications.14 Eventually, the parties settled. Harris County agreed to pay $97 million in damages and to institute permanent bail reforms.15 These reforms have resulted in the release of mostly low-level misdemeanor defendants from jail without their having to pay any money out of their own pockets. The local pretrial services offices have developed new ways of ensuring that a defendant shows up for court, instead of relying on the potential forfeiture of bond money as the main incentive.
