Challenges to the Cash Bail System Are Spreading

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States increasingly are reexamining the purpose of bail, reports Stateline. Six in 10 adults in U.S. jails have not been convicted; they are locked up awaiting trial, mostly because they’re too poor to post bail. They are legally innocent, but many spend months and even years awaiting trial. Often, they feel pressure to take a plea deal rather than spend more time in jail. Policymakers are proposing changes. In Illinois, lawmakers have introduced proposals that could eliminate bail for first-time nonviolent offenders or abolish cash bail. In Maryland, the Supreme Court last month changed the state’s cash bail system significantly. In January, New Jersey began a new system of pretrial detention, in which judges set bail only as a last resort. Lawmakers in California, Connecticut, Maryland and New York have legislation pending that would remake their states’ cash bail systems.

Last week, a federal appeals court heard arguments in a class-action suit that challenges the constitutionality of the bail system. Behind many proposals is a growing recognition that cash bail is inequitable and isn’t effective in ensuring that people who are accused actually go to court, says Eric Sterling of the Criminal Justice Policy Foundation. “A system where you are presumptively jailed unless you can buy your freedom is a form of pretrial punishment,” he says. Critics say the system contributes to mass incarceration because it jails people simply because they can’t afford to post bail and reinforces a cycle of poverty. Critics say “low risk” defendants who have served time are more likely to commit crimes on release. Proponents of cash bail say the money or property involved in posting bail serves as a deterrent to skipping out of court appearances or fleeing. Without money on the line, they argue, there’s little incentive to stay and go to court.


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