FROM BAIL TO INCARCERATION: THE CASH BAIL SYSTEM’S CYCLE OF INJUSTICE

by ELIJAH JENKINS STAFF WRITER

To understand the inequities of the United States cash bail system, we must first know its origins. Prior to 1789, there was no legal precedent for the practice of bail until the Judiciary Act of 1789. Going forward, bail was placed on all crimes not punishable by death, allowing citizens to remain at home until their case was decided. This system was founded upon the Constitution, guaranteeing citizens to be innocent until proven guilty. However, a system intended to allow individuals their freedom until a conviction has ultimately failed to be upheld. Our government today has feared changing this system because of its inability to predict the future consequences of change. This rationale has been the U.S.’s biggest asset in preserving democratic principles, but it is also our greatest weakness.

Today, the cash bail system does not uphold the constitutionally promised presumption that all citizens are innocent but instead restricts people’s rights and denies their freedom. Udi Odfer, a director at the American Civil Liberties Union (ACLU), stated that the U.S.

cash bail system is “one of the most corrupt and broken parts of our justice system.”

In 2014, the median annual income before incarceration, among incarcerated individuals, was approximately $19,185. This disparity has led low-income defendants to be more likely to be held in jail for longer periods of time than socioeconomically better-off defendants able to pay bail. Ultimately, the cash bail system has prevented more than 30% of inmates who were jailed pretrial from posting bail. Through systemic injustices affecting predominantly low-income communities, the cycle of going from jail to prison is a narrative common among low-income communities and communities of color in the United States.

For instance, studies have shown Black defendants are not only more likely to be denied bail but also more likely to be held in jail before trial than white defendants. Based on the Bureau of Justice Statistics, in large urban areas, Black Americans are at least 25% more likely to be held in pretrial detention and more likely to receive bail amounts twice as high as those given to white defendants. This issue did not arise because of problems within our legislative system, but rather from the injustices rampant in the U.S. judicial system. In a study done in District Courts across Boston, Baltimore, Miami, and Salt Lake City, 95% of the defendants impacted by cash bail in these districts were people of color. Moreover, more than one-quarter of these federal courts remanded individuals during the bail process without even providing them with legal representation. The U.S. cash bail system functions as though each part of the U.S. government fairly abides by its promises; however, this has proven to be false. David Arnold and Will Dobbie of Princeton University alongside Crystal S. Yang of Harvard Law School state in their paper in The Quarterly Journal of Economics,“we find suggestive evidence that this racial bias is driven by bail judges relying on inaccurate stereotypes that exaggerate the relative danger of releasing black defendants.” If we are unable to control the racial biases affecting the cash bail system, eliminating it entirely may be the only form of action left.

Currently, in Chicago, lawmakers are addressing the cash bail system’s inequities with the SAFE-T Act. Signed into law in 2021 by Governor J.B. Pritzker, the SAFE-T Act starts January 1, 2023, and states that defendants charged with criminal charges won’t be required to pay cash to be released while awaiting trial. State Senator Scott Bennett (D-Champaign) argued the SAFE-T Act is a necessary development because “it’s vital the pretrial system in Illinois remains equitable and that all individuals are treated fairly, regardless of financial status.” Although there is minimal data regarding the law’s effects on Chicago yet, the hope is for this policy to eliminate the number of non-violent defendants crowding Illinois jails. As of now, Illinois is being viewed as a test run for a potential policy blueprint that can eventually be widely implemented.

The United States cash bail system has flouted the principle that citizens are innocent until proven guilty. Over time, it has become a system unfairly restricting freedom and working against low-income individuals and communities of color. Through prejudice and discrimination, judges have disregarded the law, leading to a disproportionate number of people of color being remanded. Now, the SAFE-T Act in Chicago has become a potential beacon of hope in its effort to address the inequities in allocating justice by eliminating the cash bail requirement and implementing measures to improve the criminal justice system. New policies need to be created for true monumental change in the United States. If this can’t be accomplished, removing the cash bail system is the only choice to be made.