Jay E. Hynes
Abstract
In the United States, an individual has three hundred and sixty-five days to be brought to trial under the Speedy Trial Laws of the Sixth Amendment of the Constitution. Accused persons can remain in jail for up to a year if they are unable to post sufficient funds for bail, discrediting the accused’s presumption of innocence. The cash bail system in the United States of America disproportionately impacts arrested individuals of lower economic status, as poor individuals accused of a crime who cannot post full bail or pay a bail bondsperson must remain incarcerated until trial. Unfortunately, people who await trial in jail are four times more likely to be found guilty of the charges brought against them (Matt, 2020). Therefore, people of lower socioeconomic status are put at a significant disadvantage as they face jury prejudice as a consequence of their inability to post bail. Moreover, utilizing a cash bail system has led to mass incarceration. Currently, there are 480,000 people awaiting trial in jail (“Bail Reform,’ 2020). The United States Constitution criminalizes excessive bail and excessive fines under the Eighth Amendment; however, how is “excessive” measured when American society experiences one of the largest gaps between the wealthy and the poor? Consequently, the cash bail system penalizes being poor rather than the alleged crime by allowing wealthy criminals to remain in society awaiting trial while the poor must sit in jail. Resulting in the creation of disproportionate prison populations and disparities within the criminal justice system.
Penalizing the Poor: Why Cash Bail Must be Eliminated at the Federal Level
President Lyndon B. Johnson stated during the signing of the Bail Reform Act of 1966, “Because of the bail system, the scales of justice have been weighed for almost two centuries not with fact, nor law, nor mercy. They have been weighted with money” (Dobbie, 2021). Bail can simply be defined as “the system that governs the status of individuals charged with committing crimes, from the time of their arrest to the time of their trial, and pending appeal, with the major purpose of ensuring their presence at trial” (“Bail,” 2020). Likewise, bail can refer to “cash, property, or bond paid as a security” by a person charged with a crime in exchange for being released from custody during the time pending his or her trial. Bail is then returned when the individual comes to trial (“Bail,” 2020). Hence, pretrial detainees have not yet been formally convicted of a crime but are forced to begin serving a sentence for a crime they may be innocent of committing. The reason these defendants remain in jail before their trial date is due to the money bail system.
Furthermore, people who come from lower socio-economic backgrounds are unable to post the cash bail amount determined by a magistrate, causing them to remain in prison. In fact, indigent defendants are four times more likely to be found guilty in a court of law due to having spent time in jail before their trial than defendants who were able to secure pretrial release (Matt, 2020). The majority of indigent defendants find themselves taking a plea deal owing to the inability to post bail and the fear of taking a chance at trial. The number of people in American prisons has nearly quadrupled since 1980, with sixty-seven percent of accused persons in city and county jails awaiting their trial in a jail cell (“Bail Reform,” 2020). This demonstrates that prison populations are increasing, but conviction rates have stayed the same, signifying that the money bail system is the contributing factor. Being a nation with one of the largest gaps between the wealthy and the poor, a monetary cash bail system has caused mass incarceration to skyrocket. The cash bail system penalizes being poor more so than the crime by giving wealthy criminals the chance to remain in society while awaiting trial. However, indigent defendants must wait in jail or be forced into a plea agreement. In turn, this further perpetuates disproportionate prison populations and disparities within the criminal justice system. With this in mind, in best interest, the federal government should follow in the footsteps of states like New York, New Jersey, and California and work towards eliminating the usage of cash bail at the federal level.
Research Methods
This study was conducted using the York College of Pennsylvania’s Schmidt Library collection of databases. The following searches were conducted using the tabs “Open Access,” “Scholarly, and Peer Reviewed Journals,” and “Full Text.” The keywords “cash bail reform” and “USA” were entered in the search bar. All resources were written within the last fifteen years. In sum, that search yielded four results. Additionally, another library database search was conducted applying the same filters but not using the term USA. This search yielded thirty-two results. Out of these two searches, this study utilizes twenty-three academic journals and scholarly peer-reviewed sources to support its findings. In essence, this is a qualitative study to show the disproportionate effects that the current cash bail system in America has on individuals who belong to a lower socioeconomic class. This study utilizes primary research studies and empirical data that show the disproportionate pretrial detainee populations in select county jails across the United States to come to its conclusions. Accordingly, the study explores the disparities the cash bail system causes within minority communities.
It is worth noting that American courts have utilized a bail system since as early as the 1600s. Colonies such as Massachusetts and Pennsylvania incorporated the right to bail for non-capital offenses in their state constitutions prior to the creation of the English Bill of Rights, or the US Constitution (Van Brunt, 2018). The Judiciary Act of 1789 stated that those charged with a capital offense could still seek pretrial release, thus creating the need for the money bond system that is still used as the foundation for cash bail (Van Brunt, 2018). In the 1920s, the U.S. commercial bail bond system boomed due to high bail amounts and the growing number of indigent defendants who could not afford to post monetary bail. Subsequently, in 1951, the Supreme Court cases Stack v. Boyle and Carlson v. Landon established that bail cannot be excessive in violation of the Eighth Amendment (Billings, 2016). In Stack v. Boyle, the Supreme Court recognized the importance of “freedom prior to the conviction that enables the ‘unhampered preparation of a defense and serves to prevent the infliction of punishment prior to a conviction’” (Concannon, 2023). On October 16th, 1961, the Manhattan Bail Project was launched in response to the number of incarcerated individuals who were awaiting trial in New York City, granting indigent defendants who were awaiting arraignment to be assisted by a Legal Aid lawyer (Friedman, 1976). By 1963, the courts began questioning the current system based on the secured bond system.
In addition, the National Conference on Bail and Criminal Justice was held in the spring of 1964, which focused on alternatives to the cash bail system and on eliminating the “intentional detention of the poor” (Donnelly, 2022). At this conference, Attorney General Robert F. Kennedy delivered a speech to the Senate Judiciary Committee about the inherent discrimination within the bail system. Kennedy explained the problem as “the rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail” (Donnelly, 2022). In 1966, the Federal Bail Reform Act was passed, calling for non-capital offenses to be released before trial on their “personal recognizance unless a judicial officer determined that such release did not adequately ensure a defendant’s appearance at trial” (Billings, 2016). This act mandated that judges choose a less restrictive method to ensure a defendant’s appearance at trial while keeping in mind the public’s safety. Also, the act requires defendants of non-capital offenses to be released while awaiting trial on their recognizance unless determined that would not be sufficient to ensure the defendant will return for his trial date. Judges were encouraged to choose the least restrictive alternative to ensure the defendant’s appearance at trial. Meanwhile, for capital offenses, judges began to rely upon the defendant’s risk to the community and the defendant’s flight risk. Nevertheless, despite the bill’s passage, a decline in cash bail reform began to show by the late 1960s.
By 1974, Congress had created ten pretrial detention agencies within the federal court system to provide judges with adequate information to make pretrial release decisions. The creation of these agencies led to the passage of the Pretrial Services Act of 1982 (Billings, 2016). The act established the pretrial services agencies at the federal level (“Bail Reform,” 2020). In 1984, Congress passed the Comprehensive Crime Control Act, which contained the Bail Reform Act of 1984. This new act amended the 1966 act to include the requirement “that judicial officers consider the potential danger of a defendant to address the alarming problem of crimes committed by persons on release” (Billings, 2016). This act allowed judges to either release the defendant on personal recognizance, release the defendant on an unsecured bond, release the defendant on conditions, temporarily detain the defendant, or fully detain the defendant prior to trial. The intention of this system is to create an “in or out” style of pretrial detention (Donnelly, 2022). The 1984 act was the last significant piece of legislation that addressed cash bail practices at the federal level. Under this act, public safety became a key deciding factor when considering bail amounts. With this consideration, the public safety regarding a defendant’s money bail opens the door for disparities in the cash bail system.
Disparities within the Cash Bail System
Racial Disparities
Concannon’s 2023 study examines the impact of legal and extralegal factors on multiple discretionary points throughout the life of a prosecution. The study’s dataset utilizes felony cases tried between 2013 and 2017 at the New York County District Attorney’s Office (Concannon, 2023). The study analyzes the outcomes for racial and ethnic groups across three control variables: bail request, pretrial detention, and formal accusation. When evaluating bail requests, this study refers to the amount requested by the Assistant District Attorney (ADA) during the initial appearance. The independent variables within this study are race or ethnicity, utilizing White people as the control group. The results show that Black defendants were subjected to higher bail requests compared to their white counterparts. Specifically, the bail requests for Black defendants were 3% more than the bail requests set for white defendants who have committed the same crime (Concannon, 2023). The odds ratio “indicates that defendants who are held in pre-trial detention are more than two and a half times as likely to be indicted compared to defendants who are not held in pre-trial detention (2.51, p < 0.001). Similarly, an increase in the requested (logged) bail amount is associated with an increased likelihood of formal accusation (2.13, p < 0.001)” (Concannon, 2023). Overtly, Black defendants are subjected to higher bail requests and are more likely to be indicted in the Supreme Court compared to their White counterparts.
Another study conducted by Stephanie Holmes Didwania and published in the Northwestern University Law Review examines the racial disparities within the cash bail system. This 2021 study utilizes a criminal defendant dataset that accounts for defendants sentenced between the years 2002 and 2016 in eighty of the ninety-four federal district courts. Data was taken from the United States Sentencing Commission’s annual data files and the Executive Office of the United States Attorneys (Didwania, 2021). Results of the data conclude that Black defendants experience pretrial detention at the highest rate (68%), Hispanic individuals are detained at the second highest rate (64%), and White defendants are detained at the least high rate (51%) (Didwania, 2021). Specifically, Black men experience pretrial detention at the highest rate compared to all other groups when accounting for both race and gender disparities within the criminal justice system. Black men are detained at a 75% pretrial detention rate (Didwania, 2021). Black men are four percentage points more likely to be detained pending trial, and Hispanic men are five percentage points more likely to be detained pretrial compared to similarly situated white defendants (Didwania, 2021). Black men between the ages of 30 to 34 are incarcerated at the highest rate (Donnelly, 2018). These findings may suggest that judges who set bail are ruling based upon racial stereotypes and inherent bias due to “mostly untrained bail judges [who] must make on-the-spot judgments with limited information and little to no interaction with the defendants” (Didwania, 2021). A study of sentencing in Pennsylvania concluded that young Black men receive harsher sanctions in relation to other demographics. Cash-only bail “consistently explains a moderate, but meaningful share of Black-White disparities in conviction, pleas, and sentencing. Bail amount also contributes to the average difference between Black [defendants] and White [defendants] in the length of an incarceration sentence” (Donnelly, 2018). Disproportionate incarceration can also be attributed to the 1984 Bail Reform Act, which allowed for the detention of a defendant’s pretrial due to concerns about public safety.
As a matter of fact, bail began to be set in correspondence with how much of a risk the defendant was to the safety of the community in which he lived. In determining whether the defendant will be released on their own recognizance, criminal record and flight risk assessments are considered when determining the amount set for bail. The Damon Allen Act of Texas prohibits the release of defendants on cash or personal bond if they have been charged with a violent crime. The act also demands that a defendant be granted or denied bail within 48 hours and that criminal history must be considered when determining bail amount (Warms, 2022). When considering past criminal history regarding bail amount, Texas disproportionately disadvantages Black communities due to disproportionate incarceration rates between Black and White populations. Black people only make up 13 percent of Texas’s population, yet Black defendants make up 27 percent of Texas’s prison population (Warms, 2022). This same sentiment is shown when addressing United States prison populations. Black individuals are more likely to be convicted of a violent crime compared to their white counterparts (Warns, 2022). Therefore, Black defendants in Texas are more likely to be ineligible for release on a personal bond compared to White defendants due to having a “violent” criminal record.
A 2019 study conducted by Schaefer and Hughes utilizes a sample of 25,000 defendants in Jefferson County, Kentucky. The study finds that Black defendants were 10 percent more likely to receive cash bail rather than being released on their own recognizance (Monaghan, 2022). Black defendants are more likely than white defendants to be given cash bail, but Black individuals are more likely to experience socioeconomic disparities compared to their white counterparts. It is found that Black defendants also receive higher bail amounts compared to their white counterparts and are less likely to be released on their own recognizance–putting them at a further disadvantage (Monaghan, 2022). As such, the findings of Schaefer and Hughes’ study are consistent with other findings in this field of study.
Socioeconomic Disparities
All pretrial detainees remain in prison due to the inability to post bail because of the financial burden that bail brings to many individuals and their families. It is far too often that innocent individuals are held behind bars, awaiting trial, only because they cannot afford to post bail. Kalieef Browder, a Black teenager, was arrested in the Bronx, NY, for stealing a book bag. When he was charged, his bail was set at $3,000 due to his previously pleading guilty to another crime. Browder’s family could not afford to pay the bail amount, and he was imprisoned on Rikers Island until the charges were dropped (Warns, 2022). Similarly, a 64-year-old Black man named Preston Chaney was accused of stealing lawn equipment in Texas, and he was held in the Harris County jail on $100.40 bail. Unfortunately, he caught COVID-19 and passed away in jail awaiting trial (Warns, 2022). One hundred dollars is all that barred Preston Chaney from awaiting trial outside of jail—which could have prevented his premature death.
The Eighth Amendment of the U.S. Constitution protects defendants from excessive fines and excessive bail. However, in a country with one of the largest gaps between the wealthy and the poor, the measure of “excessive” is not a concrete definition. The median bail amount for the United States in the year 2020 was $10,000, which is still a hefty sum of savings for the average middle-class family (“Bail Reform,” 2020). It goes without saying that ten thousand dollars is unattainable to any defendant who lives in poverty. According to the Board of Governors of the Federal Reserve, “40% of Americans are unable to pay an unexpected expense of $400” (Dobbie, 2021). In New York City, 46 percent of non-felony defendants and 30 percent of felony defendants could not post bail of $500 or less, resulting in pretrial detention (Dobbie, 2021). The Supreme Court of the United States has only reviewed three cases, as of 2022, regarding the Excessive Fines Clause of the Eighth Amendment. In all three cases, the Excessive Fines Clause was not applicable to the states by the majority opinion (Warns, 2022). The Supreme Court Case United States v. Lawrence reinforces a cash bail system that remains blind to the “inherent arbitrariness of the wealth-based system that they endorse” by acknowledging that bail shall not be excessive to preserve pretrial liberty. However, the Supreme Court “simultaneously approves the detention of indigent criminally-accused persons who lack reputable friends” (Donnelly, 2022). In the case Sammons v. Snow, the Illinois Supreme Court held that “it is not a valid objection to the amount of bail required that it is greater than the prisoner is able to give, if the bail fixed is not of itself unreasonable in amount, to secure his attendance to answer for the crime with which he is charged” (Van Brunt, 2018). The Supreme Court of the United States upheld a similar decision in the case Stack v. Boyle. The court recognized that there was no justification for the bail amount of $50,000, as the penalty was “much higher than the usually imposed [bond] for offenses with like penalties” (Donnelly, 2022). The Court ruled that the need for egregious bail was an arbitrary act that would go against the intent of the founding fathers.
Unfortunately, the Court never recognized that an inability to post should be incorporated into a bail amount decision so that bail is reasonable and able to be paid by the defendant. The money bail system “capitalizes on the indigence of the overwhelming majority of criminal defendants, confining them based on the certain knowledge that they will and never be able to afford the set price for their pretrial liberty” (Van Brunt, 2018). Most recently, in Re Humphrey, the California Court of Appeals confirmed that due process requires a judge to determine the amount a defendant can pay, and the judge must set bail within that threshold unless there is justification for a higher bail amount to ensure the appearance of the defendant in court (Donnelly, 2018). Like California, many other states have taken steps to decrease the reliance on the cash bail system.
States’ Approach to Reforming Cash Bail
Senator Kamala Harris and Senator Rand Paul introduced the Pretrial Integrity and Safety Act in 2016, providing grants to the “states and tribes to implement reforms that encourage the replacement of the cash bail system” (Brink, 2019). This act would authorize the creation of a $10 million Department of Justice program for the duration of three years that provides grants to the States to fund bail reform programs designed to account for each state’s needs (McMillion, 2017). In February 2016, a Democratic Representative from California, Ted Lieu, introduced a bill that sought to prohibit using money as a condition for pretrial release in all federal courts. This bill, titled House Bill H.R. 1437, would prohibit the “Edward Byrne Memorial Justice Assistance Grant Program from awarding funds to states that use the payment of money as a condition of pretrial release… In addition, the bill would prohibit the use of bail money for pretrial release in federal criminal cases” (McMillion, 2017). Before Re Humphrey, California pretrial detainees comprised 64 percent of California’s inmate population (Matt, 2020). California detains 59 percent of defendants awaiting trial, while the average pretrial detention rate in the United States is only 32 percent (Matt, 2020). Under California law SB 10, individuals arrested on misdemeanor charges are cited and released to the public within twelve hours of being booked in the county jail. However, for a felony arrest, the bill allows county magistrates to utilize a risk assessment tool to evaluate if it is likely that a defendant would fail to appear in court if out on pretrial release. The courts would still be able to detain a defendant’s pretrial if it were deemed that no combination of pretrial supervision would prevent a flight risk or if they would be a threat to public safety (Matt, 2020). The Orange County Pretrial Assessment and Release Supervision program has been a successful example of non-monetary alternatives to the cash bail system.
Under the Orange County Pretrial Assessment and Release Supervision (PARS), individuals who are arrested but have not previously been arrested for a crime are eligible for pretrial release. Additionally, most misdemeanors are cited and released without having to post cash bail. However, the county will continue to process cases for felony arrestees who do not qualify for pretrial release under the traditional cash bail system (Matt, 2020). The California PARS system utilizes the Virginia Pretrial and Risk Assessment Instrument to assess whether a defendant will fail to appear at trial. The Virginia Pretrial and Risk Assessment Instrument utilizes prior failure to appear, prior convictions, pending charges, employment status, history of substance use, and residential status to determine the likelihood that a defendant will or will not appear in court. The instrument combines the individual risk factor scores into one score “ranging from one to nine, that reflects the likelihood that an arrestee will fail pretrial, either by failing to appear in court or through re-arrest on a new offense” (Matt, 2020). For arrested individuals who score a low score, like a 1 or a 2, pretrial services can contact the on-call judge for approval to release the arrestee on their own recognizance without posting a cash bond. Arrested individuals who score higher than a 3 on the Pretrial Assessment are assessed by screening officers who provide a recommendation on whether or not the defendant should be released on their own recognizance, released on cash bail, or detained pretrial (Matt, 2020) This instrument has been adopted by Ohio, Washington, Michigan, Illinois, Pennsylvania, and North Carolina.
On January 1, 2017, New Jersey implemented an alternative approach to the bail system. This innovative approach allows for the presumption of release for all defendants not facing a life sentence (Warns, 2022). New Jersey eliminated cash bail with a Risk Assessment Module, where the courts assess each defendant’s risks of not appearing for trial and of committing a crime while on pretrial release. The New Jersey Risk Assessment Module uses a Public-Safety Assessment tool (PSA) designed by the Laura and John Arnold Foundation, and it uses “nine risk factors to evaluate the risk of the defendant’s failure to appear, the risk of new criminal activity, and the risk of new violent criminal activity” such as “defendants age, the nature of the arrest, the nature of prior arrests, and past failures to appear pretrial” (Gutenplan, 2020). Defendants are categorized as low, medium, or high-risk based on factors like their work histories and arrest records, then a judge determines their eligibility for pretrial release” (“Bail Reform,” 2022). Based on the defendant’s PSA score and charges against him, the defendant can either be released on his own recognizance or released with pretrial monitoring conditions, or no release is granted (Gutenplan, 2020). New Jersey’s approach to bail reform is considered one of the most “successful statewide implementations of the risk-based approach” (Gutenplan, 2020).
In that same year, New York adopted Resolution 112C, which encourages authorities to release defendants on their own recognizance unless the court determines that release on cash bail or secured bond is the only way to ensure a defendant’s appearance in court (Brink, 2019). The courts would be prohibited from using monetary conditions for release that results in the pretrial detention of a defendant solely due to the defendant’s inability to post bail (Brink, 2019). By January 1, 2020, New York cash bail reform was in full effect, with the goals of creating a “more just system through speedy trial laws, discovery laws, and bail reform laws” (Gutenplan, 2020). The reforms were estimated to reduce the pretrial detainee population by 40 percent (Gutenplan, 2020). Despite facing backlash, the current New York law has made more “crimes bail-eligible, introduced new non-monetary conditions for release, and introduced a new public reporting requirement” (Gutenplan, 2020). New York does not utilize public safety and risk assessments to determine pretrial release. Similarly, in 2018, Lawrence (Larry) Krasner, the District Attorney of Philadelphia, ended cash bail for most non-violent low-level offenses. This allowed for 1,700 defendants to be released without bail (“Bail Reform,” 2022). While some states have taken steps towards eliminating the reliance on a monetary bail system, efforts must be reflected at the federal level to address the nationwide issue of mass incarceration due to the inability to post bail.
Application at the Federal Level
The United States bail system violates the three norms of international law: “right to liberty, right to equality, and right to fair trial” (Nourani-Dargiri, 2022). The system disproportionately impacts Black defendants, keeps poor defendants incarcerated due to the inability to post bail despite being innocent, and undermines a defendant’s right to a fair trial. Defendants are presumed guilty due to being incarcerated prior to trial; they are not able to communicate freely with their defense or maintain their existing ties within the community while they await trial. Defendants who are detained before their trial are four times more likely to be found guilty by a jury of their peers (“Bail Reform,” 2020). The United States is party to the International Covenant for Civil and Political Rights and had the treaty ratified in 1992, but it actively goes against the prohibition of arbitrary detentions. The treaty specifically states, “it shall not be the general rule that persons awaiting trial shall be detained in custody” in Article Nine (Nourani-Dargiri, 2022). Additionally, the current cash bail system violates the Eighth Amendment of the United States Constitution.
The Eighth Amendment of the United States Constitution guarantees the right to no excessive fines or bail. Under this amendment, judges were expected to release defendants on their own recognizance before trial unless deemed a serious flight risk or the defendant was charged with a crime where the death penalty is an option (Dobbie, 2021). However, one of the biggest issues of the US bail system is that it is “dominated by a $2 billion commercial bail bondsman industry…where approximately 14,000 commercial bail agents secure the release of more than 2 million defendants annually” (Dobbie, 2021). A bail bondsperson posts full bail in exchange for the defendant posting a small percentage of the full bail amount. Bail bondsperson also promises to search for a defendant and bring them to court if they fail to appear on their trial date. Unlike the traditional cash bail that is overseen by the courts rather than a privatized industry, defendants do not get their bail amount back if they do appear in court on their trial date (Billings, 2016). The commercial bail bondsperson industry is accused of funneling defendants to them and ensuring that bail is kept high for defendants (Dobbie, 2021). The “commercial bail bondsman industry is illegal in nearly all countries besides the United States and the Philippines” (Dobbie, 2021). Only four states have abolished the commercial bail bondsperson system—Wisconsin, Oregon, Illinois, and Kentucky (Billings, 2016). The United States should follow in the footsteps of all other major world countries and abolish the use of cash bail and the commercial bail bondsperson system.
Justification for Income-Based Fines
As stated previously, in a country with the largest gap between the wealthy and the poor, how is “excessive” measured regarding cash bail? The United States has “created a system where it is often better to be rich and guilty than poor and innocent” (Nourani-Dargiri, 2022). Stack v Boyle guarantees some realm of protection for indigent defendants—the ruling guarantees that “a defendant’s bail cannot be set higher than an amount that is reasonably likely to ensure the defendant’s presence at trial” (Dobbie, 2021). This case is significant to bail as it sets the definition of what is excessive. Excessive bail is not based upon the income of the defendant, excessive is described as “a figure higher than an amount calculated to fulfill the purpose [of returning a defendant to court] is ‘excessive’ under the Eighth Amendment (Weldon, 2018). The Concurring Opinion of Timbs v. Indiana, written by the late Justice Ruth Bather Ginsburg, reiterates that the Excessive Fines Clause is applied to the states through the Fourteenth Amendment’s Due Process Clause. Additionally, Ginsburg establishes that the protections against excessive bail and excessive fines is “fundamental to our scheme of ordered liberty with deep roots in our history and tradition” (Timbs v. Indiana, 2018). Ginsburg uses the Magna Carta to justify that fines should be proportionate to the crime committed but not “be so large as to deprive [an offender] of his livelihood” (Timbs v. Indiana, 2018). Timbs is a landmark decision, as it is “an important development in the effort to regulate the power of government to extract money and property from individuals ensnared in the criminal justice system” (Logan, 2019). To keep in-line with the sentiment of Timbs v. Indiana, the United States should move towards an income-based fine system and eventually abolish the use of the cash bail system.
In an income-based fine system, like the ones implemented in Finland and Germany, offender income plays a vital role—fines vary according to a person’s financial means. The courts determine a person’s daily income and then multiply the number by the amount of “fine units” based on the seriousness of the crime (Schierenbeck, 2018). For example, in Germany, an offense is assigned a number from 5 to 360 based on the seriousness of the crime and multiplied by the person’s daily income to determine their total fine (Schierenbeck, 2018). Thus making fines more proportional and reasonable to what the individual can pay based on their income. When the courts impose fines without regard to personal income, yes, the punishment for the crime is equally applied to all defendants, but it is not equally felt. An upper-middle-class man will not be as burdened by a $600 fine compared to a man who makes less than $12,000 a year. Adjusting monetary bail to fit the income of each defendant would ensure that wealthy criminals equally feel the consequences of their crime while lessening the burden of debt on the poor. The concept of day fines is not completely foreign to the United States as Staten Island in the late 1980s and early 1990s ran a small-scale experiment assessing the use of day fines (Schierenbeck, 2018). The results were hopeful, as the day fine system increased government revenue while also decreasing the costs of nonpayment of fines—such as warrant costs, arrests, costs, and court fees.
Some argue that an income-based fine system is “[a] redistributionist policy masquerading as criminal justice reform” despite the strides its implementation would make toward decreasing mass incarceration (Schierenbeck, 2018). However, those same people fail to understand that it is more important that punishment is equally felt rather than equally implied to deter crime. Income-based fines “reflect not only the cost of rule-breaking but the finances of the rulebreaker” (Schierenbeck, 2018). The Equal Protection Clause allows the courts to take income and poverty levels into consideration rather than prohibiting closer attention to the income levels of an individual. Relevant to the argument of this research, the Equal Protection Clause of the Fourteenth Amendment prohibits the “subjugat[ion] of indigents to incarceration simply because of their inability to pay a fine,” (Timbs v. Indiana, 2018). Following that logic, why is the pretrial detention of poor defendants due to the inability to post bail allowed? In Tate v. Short, the Supreme Court struck down a law that allowed for traffic offenses to be punishable by time in prison if the defendant was unable to pay the fine imposed on him or her at the time (Schierenbeck, 2018). The same precedent should be applied to bail if both bail and fines are regulated within the Eighth Amendment. The Court itself rejects the responsibility of making sure fines and bail are proportionate to what the defendant can afford, by placing the accountability onto legislatures and sentencing courts for how to avoid disproportionate burdens. However, when bail reform is left to the state with no federal precedent, states can take advantage of monetary fines as they increase State revenue (Timbs v. Indiana, 2018). The American Bar Association (ABA) urges Congress to act and limit the usage of case bail due to 450,000 defendants nationwide being detained pretrial due to their inability to post bail (McMillion, 2017). The United States has the highest number of incarcerated individuals in the world (Monaghan, 2022). It is time that precedent is set at the federal level and cash bail is abolished for good.
Conclusion
The United States should move towards non-monetary options for pretrial release by utilizing the Pretrial Risk Assessments already utilized at the state level. This would allow poor defendants to be at an equitable chance for release, considering the bail system often disadvantages poor defendants. Sadly, the intersection between poverty and socioeconomic disparities is evident throughout the criminal justice system. Most pretrial detainees are Black men of low socioeconomic status. These findings are in line with the fact that Black men are given higher cash bail amounts than their white counterparts, and Black men are released on their own recognizance at a lesser rate than white defendants. States like New Jersey have significantly lowered their pretrial detainee population by implementing a risk assessment tool to determine pretrial release rather than relying on monetary bail, specifically for low-level, non-violent offenses. This has helped tremendously toward mass incarceration. Taking into consideration the difficulties of abolishing the cash bail system, the United States should implement an income-based fine system if monetary punishment is necessary to ensure appearance at trial. Income-based fines would be properly in line with the Equal Protection Clause, as offender income is considered so defendants can equally feel the financial burden of their crimes. The current cash bail system often disadvantages poorer defendants due to outrageously high bail amounts that are almost impossible for a defendant or the defendant’s family to muster up. The current cash bail system violates the International Covenant for Civil and Political Rights, and the United States is one of the only countries that still utilizes a monetary bail system. The United States should use the precedent set in Stack v. Boyle and Timbs v. Indiana, as well as precedent set by the International Covenant for Civil and Political Rights, and implement legislation that would allow both federal and state courts to ween off the reliance on a monetary bail system. No longer relying on a monetary bail system that is equally applied to all, rather than equitably applied would allow poor defendants to have a fair chance at justice when compared to wealthy defendants.
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