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  • Ramy Simpson

Bail Reform Measures Inch Closer to Equality

Updated: Oct 18, 2023

The money bail system that has been so pervasive throughout our judicial system is beginning to see reform around the nation. The money bail system, which is the current system in most states, ensures that defendants can only be released from jail if they pay money as collateral in the event they do not show up to court. Bail reform advocates believe a core issue with the current system is that it will often keep harmless people in jail because they cannot afford bail, while placing dangerous criminals back in the street simply because they can afford their freedom. This system of favoring the rich has undergone scrutiny and led to new ideas intended to promote equality. Bail reform advocates’ predominant vision of change is the implementation of evidence-based practices, rather than money, to determine whether a defendant should be released from jail while awaiting trial. Evidence-based practices largely focus on the defendant’s history.

The Indiana Supreme Court recently determined that defendants could not be required to pay bail unless they are a perceived flight-risk or dangerous. The court adopted evidence-based practices to determine the risk that the defendant may not appear at trial or whether the defendant is too dangerous to return to society pending trial. Evidence analysis can include up to ten questions about the alleged offense, the defendant’s mental health, drug use, criminal history, and employment. The answers to these questions generally will be used for a one-page summary of the defendant’s characteristics. The summary will have a score based and weighted on data that shows how each question subject correlates to a defendant’s flight risk.

The United States Attorney General, Loretta Lynch, has also vouched for bail reform on behalf of the Obama administration. Lynch believes that the money bail system discriminates against the poor and criminalizes poverty. Given that the Constitution requires equal protection for all citizens, bail reform advocates believe change is necessary in order to preserve a defendant’s constitutional right to a presumption of innocence. If the poor need to pay for their freedom, then they are not as protected as the rich. Currently, 450,000 people per day are held in jail because they cannot afford to pay bail. These 450,000 people make up 60% of people incarcerated in jails, and three-fourths of that sixty percent are nonviolent offenders.

Additionally, people who are placed in jail for days risk losing their job and even their children. This incentivizes them to plead guilty at their arraignment to a crime they might be innocent of, if that means getting them back to their home sooner. This is because guilty pleas for nonviolent crimes often will have sentences shorter than how long a defendant would have to sit in jail awaiting trial. Furthermore, the money bail system has a negative effect on both poor people and States. The nationwide annual cost of pretrial incarceration is an estimated $9 billion. The American Bar Association believes that cities and counties would save a substantial amount by eliminating the money bail system.

Like Indiana, Maryland also will likely reform its bail system through its judiciary system. The Standing Committee on Rules of Practice and Procedure of the Maryland Court of Appeals voted 18 to 5 for the proposed changes, which still need to be reviewed by the Court of Appeals’ judges. The committee voted that excessive bail amounts could not be set for poor defendants unless the defendant is perceived to be a flight-risk or dangerous. Like many other bail reform advocates, the committee believed the traditional system was unfair to the poor and minorities. The Maryland Attorney General believes that excessive bail amounts are unconstitutional, and the District Court Chief Judge advised that the court needs to place the least burdensome conditions on defendants awaiting trial.

The Maryland Office of the Public Defender (OPD) study on the money bail system surely influenced the Maryland committee’s decision. The OPD found that the money bail system targets African Americans and the poor, and forces them to pay thousands on nonrefundable bail amounts. The money bail system allows people who can afford the full bail amount to get their money back when they appear at trial. However, those who cannot afford the full bail amount and do not want to await trial in jail need to pay a for-profit bail bondsman a nonrefundable 10% of their full bail, regardless of whether they are convicted. The bondsman then pays the rest of the defendant’s bail on the defendant’s behalf. This has a gross effect on the poor, whose only practical option is to pay the 10% or stay in jail until trial. Bail bondsmen of course advocate against bail reform proposals, as their ability to profit off poor nonviolent offenders will be impeded.

The study also found that between 2011 and 2015, Baltimore City residents paid $113 million in nonrefundable bail premiums. Shockingly, people who were found not guilty made $75 million of these payments. This has had the largest effect on the African American community, whose bond premiums were 45% higher than white defendants. African Americans have paid more than double in premiums than all other races combined in Maryland.

Many believe that an unsecured bond system, which would make defendants pay a predetermined amount only if they do not appear at court, would fix this pretrial discrimination problem. Adversaries to bail reform believe that this would lead to more defendants fleeing and not appearing at trial. However, the study also found that the failure-to-appear rate among defendants on secured bonds and defendants on unsecured bonds was virtually the same. It estimated that those on secured bonds fail to appear 6.5% of the time, and those on unsecured bonds do not appear 6.3% of the time.

Bail reform could have a substantial effect on practitioners, specifically defense lawyers. It is much more difficult to defend clients when they are incarcerated. Lawyers often have time limits when visiting clients and are impaired by not being allowed to meet with their clients in an appropriate or neutral setting. Additionally, defendants who are incarcerated until trial may have difficulty processing the situation and refrain from trusting the lawyer. These issues often lead to lawyers not having all the important facts to effectively defend their clients. Furthermore, defendants who are incarcerated because they cannot afford bail are statistically more likely to be convicted than those who committed a similar crime but could pay bail. This is often because defendants will plead quickly and without counsel to ensure their release. Bail reform will provide defense lawyers more time with their client in a private setting to form a defense, and allow for fair hearings where defendants will not plead based on their financial condition. It will also ensure that defendants can be released before trial, and the lawyer’s job becomes easier if the defendant shows good behavior while awaiting trial. Bail reform should lead to a lower conviction rate, and higher success rate for defense lawyers.


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