Posting bail: The problems with the cash bail system

After an arrest, criminal defendants in the vast majority of cases have a right to bail. Bail affords you the opportunity to pay money to get out of jail while you await trial. If you show up for court and comply with all of the other conditions of your bond, the money you posted will be paid back, and/or applied to any fines, fees, and court costs you ultimately are required to pay. Bail provides the benefit of being out of custody while a criminal case is pending. However, as one recent article points out, there are growing national concerns about the fairness of bail setting, and some are pushing to do away with bail as we commonly know it.

Understanding how bail works

Typically, after an arrest you will see a judge. This judge will hear arguments from the prosecutor and from your lawyer, and will look at several factors, including:

• Details and severity of the alleged crime
• Whether you are a flight risk
• Your financial resources
• Your ties to the community
• Your criminal history
• Your current employment status and employment history
• Your overall character and reputation in the community
• The sentence you are likely to face based on your charges

Taking these and other similar factors into consideration, the judge will decide what the amount of your bail should be, and what the conditions of your bond should be. Conditions of bond are based on statistical assessments of individual defendants. They usually include, at a minimum, remaining law abiding and not leaving the state without the permission of the court. They can include other requirements such as abstinence from alcohol and drugs, random substance use testing, check-ins with a pretrial supervision case manager, and use of a GPS ankle monitor to ensure compliance with a protection order. You can either then post the bail money yourself, or someone else can do it on your behalf. If you cannot afford bail, you can either decide to stay in jail or hire a licensed bail bondsman to get you out.

A bail bondsman will charge you a fee based on a percentage of your overall bail. For example, if your bail is set at $10,000 and you hire a bail bondsman who charges 10 percent, you will pay them $1,000. If you use a bondsman, you will not get the money paid to the bail bondsman back when you return for court.

For the bail bondsman, they are assuming the risk of you not returning for court. If you do not return for your court date, the bail bondsman can lose the money they paid on your behalf to get you out of jail. In this case, the bail bondsman would forfeit the $9,000 if you did not show up for your court date.

The problem with bail

One of the biggest concerns with the bail process is that it clearly favors those with money, as those are the people who will be able to post bail. However, those without money cannot afford to post their own bail or swallow the percentage cost that comes with using a bail bondsman. People who are able to post bail are usually able to obtain better final outcomes in their cases than people who remain in jail for lengthy periods of time before being convicted. Additionally, staying in jail while a case plays out causes disruptions in career and family life that can have long lasting and sometimes catastrophic consequences.

Will bail go away?

Looking to the future, it’s unknown exactly how bail setting will shake out. While one state – California – has already decided to do away with bail and rely on other bond conditions to ensure court attendance and law abiding behavior, there are concerns with the new risk assessment system that is in its place. The concern here is that relying on criminal history – stemming from an already corrupt criminal justice system – brings with it racism and discrimination that continue a poisonous cycle of unfairness and disproportionate punishment meted out to those who can least afford to bear it.

What do you think? Is it better to keep bail as it is? Reform the bail setting process? Or explore other options?