America’s criminal justice system is profoundly broken, and one of its most alarming features is its staggering incarceration rate for those not even convicted of a crime. American prisons incarcerate over 450,000 individuals who, unable to afford cash bail and accused of minor crimes, are merely awaiting trial within a U.S. prison. We must find alternatives to the cash bail system.
The purpose of cash bail—to pressure those accused of a crime into showing up for court—has long roots in American law. However, in the midst of the inequities of American society, disturbing consequences have emerged from the practice. Many of our poorest citizens are forced to sit in jail awaiting trial rather than pay oft-exorbitant bail fees.
Many pre-trial detentions involve individuals accused of low-risk crimes — traffic violations, non-violent drug offenses, property crimes — who then cannot afford to pay their way out of jail. And the fiscal consequences of our over-reliance on cash bail is stark: we squander over $13.6 billion every year by running jails filled with pretrial detainees.
Fixing the cash bail system is a matter racial justice as well, since non-violent pre-trial detention disproportionately targets African-American and Latino individuals. Black individuals receive “significantly higher” bail amounts than white individuals, which is worsened by the existing higher likelihood that people of color will serve pretrial time when accused of a crime. In addition, digital risk assessment algorithms that are frequently used formulate bail amounts are “frequently prejudiced, falsely flagging black individuals as high-risk … at twice the rate of whites.”
Communities have enacted alternatives for years, and they deserve to be expanded across the country. Washington D.C. long ago scrapped cash bail, instead favoring a system that relies on reporting to court or GPS monitoring whilst detaining people with high-risk of violence or danger. “There is no evidence you need money to get people back to court,” D.C. Superior Court Judge Truman Morrison told the Washington Post in 2016. “It’s irrational, ineffective, unsafe and profoundly unfair.”
Sen. Bernie Sanders, I-Vt. and Rep. Ted Lieu have, D-Calif. both introduced legislation in the Senate and the House that encourages just that — banning cash bail in the federal court system and incentivizing state and local courts to find alternatives to the cash bail system. Political pressure should be placed on lawmakers to pass this legislation through Congress and ensure our over-reliance on cash bail is diminished.
The elimination of cash bail does not come without hazards. Activists and scholars have opposed a cash bail repeal bill in California over fears that the new system — an algorithm-based risk assessment tool that gauges criminal history to make predictions on future misconduct — will actually increase rates of pre-trial detention and remain racially biased. “Like taking Advil for cancer, California has alleviated a symptom while ignoring the underlying malady,” David Feige and Robin Steinberg argue in a recent New York Times op-ed. We’ve yet to see whether or not Feige and Steinberg’s fears will be founded, but they raise an excellent point that new bail systems may only exacerbate problems if not carefully implemented.
Luckily, most experiments with new bail systems have worked well and avoided these problems. Philadelphia implemented an “early bail review” that released people with bonds under $50,000 who had still been jailed after five days. According to Philadelphia mayor James Kenney, the city released 84 percent of those reviewees, and more than 92 percent later returned for following hearings. The city relocated non-violent drug offenders from jail cells to drug treatment centers, and none of these offenders were re-arrested over a four-month period. The city dramatically decreased jail populations, and considers their experiment with pretrial release a success.
In the midst of a criminal justice system imbued with racial and economic inequalities, our deeply flawed cash bail system must go. Affluence cannot define who walks free and who doesn’t. We must stop holding people for the crime of being poor.
Jack Wilkins is a Viewpoint Writer for The Cavalier Daily. He can be reached at opinion@cavalierdaily.com.
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