Bail is an amount of money set by the court to act as insurance to make sure that a criminal defendant shows up for their day in court. If the defendant makes all court appearances then their money or property that they posted for bail will be returned. If the defendant misses a court date then their bail will be forfeited.
Concerns about the fairness of the bail system have surfaced recently regarding non-violent, low flight risk, indigent criminal defendants. The concern is that defendants are being held in jail due to a bail that they can’t afford, not because they should be incarcerated pending their trial. Such cases can result in the defendant waiting in jail until their trial for longer periods of time than they would even be serving for any sentence the receive if they are convicted. In some instances, defendants who may be not guilty will take a guilty plea for time served just so they don’t have to wait in jail any longer than they already have.
Some argue that the bail system is unjustly biased towards indigent citizens. Others go so far as to argue that the bail system is an unconstitutional way to keep the poor locked up and give the rich an easy way of avoiding jail time. Judges who feel so strongly that bail is unfair and or harmful have stopped asking for bail and let the defendant go free until trial based on their own judgement of the situation unless they feel the defendant is a threat to the community and or a flight risk.
Some states are even looking at ways to reform the bail process. For example, Alaska passed a law that is meant to slow down its incarceration rates by creating a pretrial screening process that examines each case closely and determines the likelihood of the defendant returning for the trial date or committing another crime if released. The law also only allows bail to be set for violent offenders and high risk people. A similar law) has been passed in Ohio that has judges assess the risk of the defendant returning for court before assigning the bail.
In contrast, pro-bail entities such as bail bondsmen argue that the criminal justice system is already so slow that if bail was removed the amount of time added by pretrial assessments like in Alaska and Ohio would make things even worse.
Many bail advocates also argue that it’s untrue that the bail system is unfair to the poor due to the bail bond industry’s role in the bail process. In most cases, bondsman only charge around 10% of the total bail to the defendant and then put up the rest. This discounted bail makes it more affordable for indigent defendants who otherwise wouldn’t be able to get out of jail without that assistance.
The general consensus amongst most public defenders, judges, and prosecutors, regardless of political affiliation, is that the cash bail system needs reforms. Retaining the right criminal attorney is important to making sure a criminal defendant’s rights are not violated during the pretrial process. Contact the attorneys at Whitbeck Cisneros McElroy PC and schedule a consultation with one of our skilled attorneys. Our team has years of experiencing handling criminal cases.