The damaging effects (and obsolescence) of the monetary bail system are well documented. As observed by the Criminal Justice Policy Program at Harvard University, the system of cash bail divides detainees into those who can afford to pay their way out of jail and those who cannot afford such a luxury. Thus, the imposition of such a condition fosters a system that punishes the poor. And the punishment is severe. Those who can’t afford bail often fail to compile a sufficient case for their defense, which increases the likelihood of their being indicted. They also stand to lose their jobs, miss rent payments and default on loans. In short, a person’s life can be radically altered.
Presumption of Guilt
Additionally, it is a putative principle of the United States Criminal Justice System that those who are accused of a crime are presumed innocent until proven guilty. In effect, the cash bail system punishes innocent people for crimes they may or may not have committed, thereby causing rates of incarceration to increase unnecessarily.
Due to the injustices inherent in pretrial administration, some states have started to pull back on the rampant use of bail. Last year, in New Mexico, voters approved an amendment to the state constitution (Constitutional Amendment 1), according to which a person “may file a motion with the court requesting relief from the requirement to post bond,” if they:
- Are not a flight risk
- Are not a danger to society
- And cannot afford bail
Reforms such as this are perhaps helpful for easing some of the pressure on impoverished defendants. But some have claimed that the measure is insufficient, as people may still be detained for a short while, which could be enough to turn a person’s life upside down or, in some cases, end a person’s life.
New Jersey implemented its own version of bail reform earlier this year. The Bail Reform and Speed Trial Act introduced a strict test to determine whether someone should be detained. The Public Safety Assessment, as the test is sometimes called, takes multiple factors into account – these include the age of the defendant, the nature of the crime and the defendant’s flight risk.
Of course, the bail industry hasn’t been happy with the changes in New Mexico and New Jersey. In June and July of this year, several interest groups filed suit, seeking to bring down the New Jersey law, which has effectively reduced the profit margins of the bail-bond industry.
In June, a bail underwriter, known as the Lexington National Insurance Corporation, filed a class-action suit on behalf of Brittan B. Holland, who, according to the allegations, suffered a loss of liberty due to the virtual abolition of the bail system. The company claimed that Holland should have been given the right to pay his way out of jail. Instead, he was forced to wear an ankle bracelet and thus sacrifice his freedom.
In July, a woman named June Rogers filed suit, seeking retribution for the murder of her son at the hands of a defendant who dodged pretrial detention. Rogers is being represented by Nexus Caridades, a firm that works for a bail-bond company specializing in immigrant detention.
The suit makes some rather alarming complaints. At bottom, Mrs. Rogers and her attorneys contend that the bail reform in New Jersey has resulted in the disproportionate release of African Americans. This, they argue, places black communities at a greater risk than other state residents. However, this argument assumes that the disproportionate influx of black people into jails and prisons is unproblematic and not itself an example of systemic racism. In some ways, their argument accepts the racist notion that black people are inherently predisposed to criminality.
It seems clear that these lawsuits are (at least in part) a front for special interest groups – groups who stand to make money on the backs of impoverished detainees. Bail reform advocates hope these suits do not prevail against the recent reforms.