Since the Declaration of Independence in 1776…
Americans have proudly boasted about the philosophy they hold so close to their hearts: all people charged with a crime should be presumed innocent until proven guilty and treated as such. Yet today, there are 750,000 people sitting in US jails, and approximately 65% of them haven’t been convicted of any crime. This is due overwhelmingly to what our justice system does to defendants before their dates with juries, and how it determines who should walk free while waiting for court. Jails and prisons are places for convicted criminals, not anybody who is arrested. A founding principal of our democracy, the notion that juries, not police officers, administer justice, is actively violated every night that another innocent defendant waits in jail.
How did I become Interested?
To find a topic for this project, I started with a place all too familiar to me: The Youtube page for all of John Oliver’s “Last Week Tonight” videos. After perusing them for a long while, I settled on the issue of bail. The issue spoke to me because it preys nearly exclusively on the poor: If someone can’t afford the bail that a local judge sets, sometimes arbitrarily, they have to either sit in jail–sometimes for years-– or plead guilty to a crime they might not have committed, for the consequences of being poorly represented, found guilty, and getting an even heavier sentence are usually much worse. To me, this is a hearty manifestation of injustice in America – a punishment for those of low socioeconomic standing. Because solving the issue wouldn’t have significant economic or social repercussions, as many experts in the field have demonstrated, and it’s so widespread that it affects hundreds of thousands of poorer Americans, it seemed like a strong choice.
How long has this been an issue?
Bail was a common practice throughout the British North American colonies prior to their unity under our flag, and prior to the Bill of Rights (Hegreness). Following U.S. independence, a right to bail was put in most state constitutions, and Congress ensured that states upheld an American’s right to bail via the Northwest Ordinance of 1787 and the Judiciary Act of 1789 (Hegreness). The Bill of Rights, ratified in 1791, saw another mention of bail. According to the 8th amendment to the Constitution, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Since its beginning, bail was intended to allow potentially innocent defendants to walk free until their court date, not to benefit actual offenders (O’Brien, Kohl, Zaniewski). For most of US history, judges were very pro-bail: They most frequently posted bail at a moderately reasonable price, and rarely ever detained potential offenders of non-capital crimes (O’Brien, Kohl, Zaniewski). For reference, a capital crime is a crime punishable by death, such as murder or treason (O’Brien, Kohl, Zaniewski).
But all throughout history, federal bail law has been muddled: We have no official constitutional right to it (Hegreness), except that it cannot be made excessive according to the 8th amendment. The due process clauses of the 5th and 14th amendments leaves “courts and Congress to tinker with what is ‘due’” (Hegreness). Additionally, the writ of Habeas Corpus, “the right to be heard and released for unlawful detention” must be upheld as long as we are not undergoing an “invasion or rebellion” (Hegreness). There is no specificity in the Constitution, however, about when pre-trial detention is indeed unlawful, rendering it virtually inapplicable.
To understand modern bail law and the reason that we have almost half a million people in jail awaiting trial (Brave New Films), we have to break down the system of bail and sureties that permeates our justice system. Beginning in 1682, modeled after the British system of bail, the colony of Pennsylvania stated in its constitution that “‘all prisoners shall be Bailable by Sufficient Sureties, unless for capital Offenses, where proof is evident or the presumption great’” (Schnacke et al.). Since then, almost all colonies or states have recognized a right to bail in their constitutions (Hegreness). But what is a surety? “‘Surety’ options allow defendants to pay a portion of the bail bond amount as a nonrefundable fee to a bail bondsman or agency” (Rabuy and Kopf). A private agency or individual steps in, offering the defendant a deal: They can pay a fee, “typically 10%,” to a bondsman, who will post the entirety of the bail set by the court. The defendant can walk free, but will never see their surety again (Rabuy and Kopf).
Private bondsmen started their enterprise in 1898, with two brothers from San Francisco, Thomas and Peter McDonough. They turned their small business into an enterprise, and soon many followed suit: “With a growing number of defendants facing increasingly higher money bail bond amounts, the professional bail bond industry flourished in America” (Schnacke et al.).
There was little criticism of third parties involving themselves in criminal justice until the 1920s (Schnacke et al.). In 1927, a landmark study was published, decreeing that “‘bail amounts were based solely on the alleged offense and that about 20 percent of the defendants were unable to post bail’” (Schnacke et al.). The study also notes abuses by private bondsmen, such as instances in which they failed to pay courts (Schnacke et al.). According to Schnacke, “little happened in the history of bail and the pretrial process between 1927 and 1951, the year the Supreme Court decided Stack v. Boyle.” In the case, defendants petitioned a trial court to lessen their bail bonds, citing 8th Amendment grounds, under the clause that “Excessive bail shall not be required” (United States Constitution). They provided “proof of their financial resources, family ties, health, and prior criminal records” (Schnacke et al.). The Supreme Court ruled in favor of the plaintiffs, stating that, because the government had provided no evidence in the context of the defendants themselves and had simply based the bond amount on previous defendants accused of the same crime, “the Court remanded the case to the trial court for new bail bond hearings” (Schnacke et al.). In the Court opinion, it implied that “bail should only be based on an individualized assessment of each defendant” (Schnacke et al.).
In 1954, a study conducted by Caleb Foote noted an obvious yet critical detail in the American pretrial justice system: “those who remained in detention pretrial were mostly poor and unable to raise the bond amount” (Schnacke et al.). Most people weren’t kept in jail because they were assessed as a danger to the community, but rather because they simply couldn’t afford to get out. Yet it worsened: Schnacke, citing Foote, states that “defendants who were unable to pay their money bail bond amounts were more likely to be convicted and to receive higher sentences than those defendants who were able to pay their money bail bond amounts.” Foote’s study, and studies like it, led to a hearty bail reform movement in the 1960s (Schnacke et al.).
Bounty hunting, or the process of hunting for those who post sureties with private bondsmen and do not show up to their court date, became legalized in a Supreme Court decision, Taylor v. Taintor, in 1872. It’s since turned into a popular media sensation, spawning ridiculous reality TV shows like the one pictured above.
In 1963, Attorney General Robert Kennedy instructed all United States Attorneys to recommend own recognizance as the primary method of bail “in all instances practical” (Schnacke et al.). Own recognizance is a system, ordered based on an individual’s relationship to the community as well as flight risk, in which a defendant simply signs a document promising they will return to court for their trial (Rabuy and Kopf). It proved incredibly effective with defendants charged with misdemeanors in places such as Massachusetts or Washington D.C. (Schnacke et al.). Kennedy then called a national conference to discuss bail, drawing the conclusion that “only one factor [currently] determines whether a defendant stays in jail before he comes to trial… How much money does the defendant have? (Schnacke et al, quoting Kennedy)”
Yet this new policy did not last long. Near the end of the 60s, much of the fervor for bail reform had died out, and almost every program nationwide using own recognizance was no more, not due to ineffectiveness, but rather to the process of maintaining such programs and the stigma around letting “criminals,” go free after doing nothing but signing a paper–although all of them were yet to be convicted, (Schnacke et al.). On top of this, more corruption of bondsmen was exposed, leaving many Americans once again questioning the integrity of the American bail system. Since the 1960s, bail and jail overcrowding have both been recognized as problems on both sides of party lines, but little has been done to improve policy at the federal level.
From the Prison Policy Initiative
Jail should be a place for convicts. Innocent until proven guilty is what much of our justice system was built upon. Yet in 2006, 62% of all incarcerated inmates were not in jail because they had committed a crime, they were there because they were simply awaiting trial. This was up from the 56% in 2000 (Schnacke et al.). So today, we have more people going to jail, thus losing their jobs (Oliver), and facing higher recidivism rates than their counterparts who can afford bail (Rabuy and Kopf).
That’s where we stand now. We have more than a half a million people incarcerated (Brave New Films), 80% of whom are poor or needy (Rabuy and Kopf), and none of them can do anything except plead guilty to a crime for which they’d like to maintain their innocence (Rabuy and Kopf). They’re losing jobs, licences, loved ones, and sometimes their lives (Oliver). Reform is simple, as countless experts have shown on small scales, and would cost less than the system in place today (Schnacke et al, Rabuy and Kopf, Oliver, DuVernay). The history is ugly, even beyond what I’ve detailed, but change is an imperative.
What is there to be done?
There are states and cities in our country that are already employing new forms of bail in their justice systems, such as Kentucky, which eliminated third party bondsmen by allowing a defendant to give the court 10% of their bail, rather than an agency, and Washington D.C., which broadly employs a system of own recognizance, in which defendants accused of municipal violations and other lesser crimes simply sign a paper saying that they will show up for trial, and are reminded once or twice to show up. Both systems have been proven to not only do less harm to families and individuals charged with crimes, but actually have higher success rates of defendants showing up to trial.
Thus, the solution I propose to reduce America’s jail-overcrowding and solve its bail problem is this: The federal government should mandate that own recognizance be used in all situations in which the defendant is not a serious danger to their community, and only post bail at a level at which the defendant can afford to pay. The federal government should then make bounty hunting illegal, effectively eliminating the ability of third-party bondsmen to interfere with criminal justice, for they’d have no way to enforce their rules. Lastly, to prevent an influx of violent crime, we should detain anyone with a previous conviction of a violent crime who is charged with another one. Their trials should then be moved to a sooner date, so as to expedite their release or formal incarceration. The money saved from keeping people out of jail should then be used to schedule and process more court hearings, so as to get people out of jail even sooner. Any remaining funds should be dedicated to a public propaganda effort to get greater public sentiment for jury duty, so as to expedite trials. All of these proposals have been implemented with incredible success, as well as on a fairly large scale. They’ve simply yet to be brought together. If put in place, the government could save billions of dollars, as well as deliver its citizens the life, liberty, and pursuit of happiness they’re promised.
and what can you do?
The first step in solving any problem is awareness. Share this project with others if you believe that they should know about American bail.
For any formal change to occur on a federal level, we need to let our representatives and Senators know that we, their constituents, demand action.
This means refusing to vote for any candidates who receive funding from lobbying groups that push for and profit off of people living in jail, such as the American Legislative Exchange Council. For a list of United States representatives affiliated with the group, click here.
Local change is possible as well, and can often be more immediate and effective: look for local solutions to the bail crisis, such as New York’s small fund of ATMs for those who cannot post bail immediately.
Lastly, don’t let this fall to the back of your mind. In the midst of political firestorms in so many different fields, it’s an imperative that we focus on the hundreds of thousands that are wrongfully incarcerated in this country.
DuVernay, Ava, director. 13th. 7 Oct. 2016.
Feige, David. “Waiting and Waiting for Justice.” The New York Times, The New York
Times, 1 May 2013,
Brave New Films. “Almost Half a Million People Are in Jail Awaiting Trial.” The
Nation,The Nation, 5 Dec. 2016,
Hegreness, Matthew J. “America’s Fundamental and Vanishing Right to Bail.” Arizona
Law Review, no. 55, ser. 905, 2013, pp. 909–916. 905, arizonalawreview.org/pdf/55-4/55arizlrev909.pdf.
Rabuy, Bernadette, and Daniel Kopf. “Detaining the Poor.” Prison Policy Initiative, 10
Schnacke, Timothy R., et al. “The History of Bail and Pretrial Release.” Pretrial Justice
Institute, 24 Sept. 2010.
O’Brien, Kohl, Zaniewski, Carol, Rhiana, Amanda. “Bail in the United States: A Brief
Review of the Literature.” Massachusetts Department of Corrections, Nov. 2014.
Oliver, John. Last Week Tonight: Bail. Last Week Tonight, 7 June 2015,
Prison Legal News. “Our Bail System Is Leaving Innocent People To Die In Jail Because They’re
Poor.” Prison Legal News, 24 Feb. 2017, www.prisonlegalnews.org/news/2017/feb/24/our-bail-system-leaving-innocent-people-die-jail-because-theyre-poor/.