Why Bail Works

Considering the Rights of a Defendant

As bail reform considerations take place across the country, few people have talked about why bail was established to begin with and how eliminating bail without an adequate substitute could take away certain rights provided to a defendant.  First, bail is not the enemy.  Yes, there are issues in the criminal justice system.  Undoubtedly, there is systemic racism and our criminal justice system continues to harm the disenfranchised.  But is it all bail or is there a bigger picture to consider – a bigger problem to tackle?

Bail is designed to help a defendant get out of jail while awaiting trial.  Defendants should have the right to be released pretrial instead of waiting for their court date behind bars, especially given the overburdened court systems that have backed up calendars putting trials months behind or more.  If bail is eliminated without a reasonable solution, defendants may be unable to get released.  This means that more people would end up behind bars for longer periods of time.  Now, some argue that pretrial release programs that use risk assessment to determine release eligibility should replace the current bail system.  The problem is that these risk assessment systems are far from transparent, many using biased data to determine whether a defendant should be released.  This means that the same pattern of keeping low income and minorities behind bars will continue, if not get worse.

Constitutionally, bail cannot be excessive or unreasonable.  Without question, there are issues across the country that must be addressed.  There are corrupt bail companies, corrupt courts, corrupt law enforcement that must be addressed, but eliminating a right of a defendant does not solve those problems.  Without a true solution, bail remains a right that should not be taken away.


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