Why Bail Reform Is Hard: The System Encourages Plea Bargains


Nearly 750,000 people in the U.S. are in city and county jails, 60 percent of them not convicted of anything. Many of them cannot afford to pay the bail that has been set. In New York City, says the New York Times, where courts use bail far less than in many jurisdictions, about 45,000 people are jailed each year because they can't pay their court-assigned bail. Only one in 10 defendants is able to pay at arraignment. Even when bail is set comparatively low — at $500 or less, as it is in one-third of nonfelony cases — only 15 percent of defendants come up with the money to avoid jail. Bail hasn't always been a mechanism for locking people up. In England during the Middle Ages, magistrates were required to let defendants go free before seeing a judge, guaranteeing their return to court with a bond. If the defendant failed to return, he would forfeit the bond.

As bail has evolved in the U.S., it has become less a tool for keeping people out of jail, and more a trap door for those who cannot afford to pay it. Unsecured bond has become vanishingly rare, and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front (''money bail'' or ''cash bail'') or pay a commercial bail bondsman to do so. For low bail amounts — say, below $2,000, the range in which most New York City bails fall — the second option often doesn't exist; bondsmen can't make enough money from such small bails to make it worth their while. With national attention focused on the criminal-justice system, bail has been cited as an easy target for reformers. But ensuring that no one is held in jail based on poverty would necessitate a reordering of criminal justice. The open secret is that bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals, sometimes at their arraignments.

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