Whether you know anything about the law or the way the criminal justice system functions, you’ve likely heard the phrase “innocent before proven guilty” before. This idea was centrally established and represented by the various clauses in the 6th Amendment of the Bill of Rights (LAWS.com 2020). Also in this Amendment is the guarantee of the right to a speedy trial and other provisions to, in theory, ensure fair and equitable trials. While many don’t know where to locate this information or the history behind their creation, the phrases and principles themselves are seen or discussed fairly often in popular culture, the media, and even in various shows and films. So it’s easy to have a fundamental justice understanding of what they mean and how they would ideally correlate to treatment for the accused. Ironically though, these same principles are frequently overlooked or circumvented within the criminal justice system. 

Usually often done is through the cash bail system, a system deeply embedded and in many ways 

foundational to the criminal justice system overall in the United States. Cash Bail’s have altered the course of many lives for the worse in leading to the imprisonment, isolation, and harming of many as they await trial to weigh perceived innocence/guilt. Still, many aren’t aware of how the bail system functions on a deeper level, which is part of the reason why there isn’t as much collective outrage surrounding it, prisons, or the criminal justice harms in general. So let’s cover some of the basics of the bail system and its problems. 

To start, it’s essential to have a clear understanding of what the definition of bail is in the first place. It’s thrown around a lot, but what is it? Bail can be defined as “the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money be lodged to guarantee their appearance in court” (Oxford Languages).  This seems straightforward enough in theory. However, its real-world application is far more complicated.

One of the major complications with the bail system is the conditions necessitated for release, one of the most prominent money (ie the cash bail system). Depending on the accused’s crime/severity, past criminal record, flight risk (risk of accused fleeing), danger to or safety of the community, and more, a sum of money (cash bail) is handed down accordingly as perceived necessary by the judge (American Bar Association). This money must be paid or “posted” for the accused to be released on bail. Granted, this money is returned at the completion of the trial (as it’s “intended” to be an only assurance for appearance in court). 

However, what you’ll notice is that the income, job, family situation or living situation, mental or general health, and more nuanced details about the accused are not fundamentally taken into consideration in this cash bail assignment. This means that large and virtually impossible to cover cash bails can be assigned to people who simply do not have the funds to cover them. When they’re subsequently unable to post bail, they are sentenced to await their trial in jail, regardless of their family structure, the nature of their jobs, their health, etc. The length of time in jail can range anywhere from days to weeks to even years in some cases, all before a person’s innocence or guilt is decided. So it’s interesting, to say the least, that phrases like innocent until proven guilty are used with such ease. 

The ramifications and toll of imprisonment for all who are imprisoned cannot be overstated. Imprisonment has deeply destabilized and created long-lasting effects on all who endure it (and the loved ones who endure it with them), whether guilty or innocent or simply awaiting trial. Its use as a means of holding those who are unable to afford bail is unacceptable and fundamentally at odds with what this nation brandishes as free and inalienable rights. 

Another major complication regarding the cash bail system is its extent is arbitrarily applied. Judge’s use the factors listed above, among others situationally,  to decide the cash amount required for an accused person to be released on bail. However, a judges’ perception and ultimate judgment don’t exist in a vacuum. Meaning judges are subject to the same biases and prejudices as any other person. They often find themselves upholding larger systems that functionally oppress/harm the accused, such as anti-blackness or poverty exacerbation. For instance, Black men, on average, have bail amounts that are 35% higher than their white counterparts. As a result, in many urban and heavily populated areas, Black defendants are 25% more likely to be held pretrial than their white counterparts (Prison Policy Initiative). 

When an estimated 63% of the nation is living paycheck to paycheck, a crisis exacerbated by the COVID-19 pandemic, the inequalities of this system are glaring (Highland Solutions). It’s entirely up to a judge’s discretion individually how much an accused person will be mandated to pay. This long unchecked power has led to deep racial, especially anti-Black discrimination and harm against accused populations. These harms and biases exist along class lines as well, as the mainly wealthy can afford the cost of extensive cash bail prices. The stakes of release are also far higher for the poor as being unable to post bail/imprisonment means losing out on time at work and possibly losing work/pay altogether. Loss of income is one great harm among others that is a loss too irreconcilable to overcome for many. Not to mention the correlation between loss of revenue/no job prospects (as well as other destabilizing effects of imprisonment) and recidivism (relapses of harm/criminal behavior upon final release) (Center for American Progress). 

The cash bail system has a long history in our nation, and while reforms to it have been made, the underpinnings and foundational harm and violence of the system have gone on unchecked for far too long. With 3 out of every five persons in jail currently awaiting trial, this is an issue that characterizes and strikes at the core of the prison industrial complex at large (Center for American Progress). We must take action to abolish this system and begin to question the need and ethicality of an institution that would prop up and allow for its existence. 

Citations:

Berbaum, J. (n.d.). Survey reveals spending habits during covid-19. https://highlandsolutions.com/blog/survey-reveals-spending-habits-during-covid-19

Leonhardt, M. (2020, December 11). 63% of Americans have been living paycheck to paycheck Since Covid hit. https://www.cnbc.com/2020/12/11/majority-of-americans-are-living-paycheck-to-paycheck-since-covid-hi…

Karakatsanis, A. (2019, December 16). How America’s bail system breaks the promise of the law. https://time.com/5749542/cash-bail-impact/

The Bill of Rights amendments – US constitution – LAWS.com. (2020, October 23). https://constitution.laws.com/bill-of-rights/bill-of-rights-amendments

“How Race Impacts Who Is Detained Pretrial.” Prison Policy Initiative, www.prisonpolicy.org/blog/2019/10/09/pretrial_race/
. 

Cash Bail, www1.nyc.gov/site/finance/sheriff-courts/courts-cash-bail.page. 

“The Home of Language Data.” Oxford Languages, languages.oup.com/. 

“Bail in the United States.” Wikipedia, Wikimedia Foundation, en.wikipedia.org/wiki/Bail_in_the_United_States. 

“How Courts Work.” American Bar Association, www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/…

Hunter, Lea. “What You Need To Know About Ending Cash Bail.” Center for American Progress, www.americanprogress.org/issues/criminal-justice/reports/2020/03/16/481543/ending-cash-bail/#:~:text….