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Cash Bail and Equality

Question 01 /21
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Does income-based cash bail violate equal protection?

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Historical Context of Cash Bail

Cash bail originated in Anglo-Saxon England as a system of sureties vouching for the accused. The Norman invasion in 1066 brought changes, restricting bail for serious crimes and giving sheriffs discretion over detention.

Early American colonies adapted these practices, with some variations:

  • Massachusetts took a stricter approach
  • Pennsylvania offered bail more broadly

Initially, America used promises rather than upfront cash for bail.

As the frontier expanded, finding local sureties became difficult. This led to the rise of commercial bondsmen who would post bail for a fee. By the time of the Constitution, the Eighth Amendment focused on keeping bail affordable without guaranteeing it as a right for all.

Despite intentions of fairness, the cash bail system has faced ongoing controversies over wealth-based detention and unequal access to pretrial release.

An illustration of an Anglo-Saxon court scene with people vouching for the accused

Constitutional Framework

The Eighth Amendment prohibits excessive bail without guaranteeing a right to bail in all cases. The Fourteenth Amendment’s equal protection clause challenges wealth-based disparities in pretrial detention.

These amendments don’t require bail to be universally affordable, but raise questions about systems that detain people solely due to inability to pay. Constitutional originalists argue the existing framework adequately prevents unfair detention without mandating free pretrial release for all.

The intersection of these amendments invites debate over balancing public safety, court appearance, and equal justice in modern bail practices.

Modern Bail Practices and Reforms

Commercial bail bonding emerged as sureties became scarce on the expanding American frontier. Bondsmen would post bail for a fee, turning bail into a business. The McDonough brothers in San Francisco were early pioneers of this model.

Reform efforts in the 1960s criticized wealth-based detention, leading to the 1966 Bail Reform Act promoting pretrial release. The 1984 Bail Reform Act allowed detention based on dangerousness.

Recent state-level reforms have moved toward risk-based release systems instead of cash bail:

  • New Jersey
  • California

These reforms aim to base pretrial detention on flight risk and public safety rather than ability to pay.

Legal Challenges and Court Rulings

Key court cases have addressed equal protection and due process concerns with cash bail systems:

  • Williams v. Illinois ruled that extending jail time solely due to inability to pay fines violates equal protection.
  • Bearden v. Georgia found it unconstitutional to revoke probation for failure to pay fines without considering ability to pay.
  • O’Donnell v. Harris County challenged Texas’ bail practices as discriminating against poor defendants. The Fifth Circuit ruled denying pretrial release based solely on inability to pay bail violates equal protection.

These cases have pushed courts to scrutinize wealth-based detention and consider reforms to pretrial systems. However, debate continues over how to balance public safety, court appearance, and equal justice in bail practices.

The exterior of the United States Supreme Court building

Impact on Society and Individuals

The cash bail system disproportionately affects low-income defendants, who often cannot afford to pay for their release. This creates a two-tiered justice system where wealthier individuals can buy their freedom while the poor remain incarcerated.

For those unable to post bail, the consequences are severe:

  • Loss of employment
  • Loss of housing
  • Loss of child custody

This can lead to a cascade of negative outcomes, exacerbating poverty and destabilizing families and communities.

The system also raises questions about equal protection under the law. It effectively punishes people for their economic status rather than their alleged crimes or flight risk. This undermines the presumption of innocence and violates constitutional principles.

"For misdemeanor defendants unable to pay secured money bail, Harris County maintains a 'sentence first, conviction after' system that pressures misdemeanor defendants to plead guilty โ€ฆ because that is the only way to secure timely release from detention."

Some states have begun implementing reforms, moving towards risk-based assessment models instead of cash bail. However, balancing public safety concerns with fairness remains a challenge. The debate continues over how to create a more equitable system without compromising community safety.

As alternatives like technological monitoring and community-based solutions emerge, the cash bail system increasingly appears outdated. Yet it persists, highlighting the tension between tradition and reform in the criminal justice system.

An empty jail cell with an open door, symbolizing the impact of cash bail on defendants

The cash bail system exemplifies the ongoing struggle to align the justice system with constitutional ideals of equality. As reform efforts progress, the central challenge remains creating a system that ensures public safety and court appearances without discriminating based on wealth.