North Texas Daily

Content warning: this article includes language and content relating to suicide and physical violence.

The criminal justice system’s use of cash bail is fundamentally flawed, as it promotes class disparity more than justice itself. 

For decades, cash bail has been a key part of the criminal justice system. The concept is fairly simple, to ensure trial attendance defendants pay a fine to the court as collateral. Otherwise, if defendants can’t afford bail or a bondsman, they’ll be put in jail, a phenomenon known as pretrial detention. 

Defendants in pretrial detention must remain imprisoned for the duration of their trial, which can take weeks, months or even years. Over 80 percent of the 548,000 people in local jails on a given day haven’t been convicted, and many of them simply couldn’t post bail, according to the Prison Policy Initiative.

The poor conditions and widespread violence in many United States jails can also exact lasting physical and psychological tolls on inmates. Between 2008 and 2019 4,998 legally innocent people died in U.S. jails, according to Reuters.

Imprisoning defendants before their trials also gives prosecutors increased leverage when offering plea deals, which typically result in reduced sentences in exchange for a guilty plea. However, those convictions have a wide variety of drawbacks, especially regarding housing, welfare and job prospects. Those drawbacks are particularly severe since cash bail disproportionately impacts the poor.

To see all these issues in action, take the case of New York City resident Kalief Browder. The Bronx Criminal Court charged Browder with robbery, grand larceny and assault for stealing a backpack in 2010. Browder, who was only 16 at the time, maintained his innocence. His family couldn’t afford to post bail, so he was detained in New York City’s notorious Rikers Island jail complex.

Browder spent three years at Rikers, two of which were in solitary confinement. Guards and other inmates beat Browder frequently. During this time, prosecutors repeatedly delayed Browder’s trial while offering numerous plea deals, all of which he refused. Eventually, the city’s criminal court dropped the charge and released Browder in 2013 after finding no evidence pointing to his guilt. In a later interview, Browder expressed his frustration, saying “I’m never gonna get to go to prom, graduation, nothing. I’m never gonna get those years back.”

The Browder family sued those involved for malicious prosecution, but Kalief himself didn’t live to see the case’s outcome. His experiences at Rikers left deep mental scars, and in 2015, he took his own life. He was 22 years old. 

Browder’s death justifiably sparked outrage, and in 2019, his home state of New York finally passed bail reform by banning cash bail for some misdemeanors and felony charges. Many states and localities implemented bail reform over the past decade, including New York, New Jersey, Kentucky, Illinois and Harris County. 

New Jersey in particular demonstrates these reforms at their best. Their new system uses an algorithm to determine every defendant’s public safety risk and risk of skipping court and allows judges to make decisions on pretrial detention and monitoring accordingly. As a result, the state’s jail population has decreased by 31 percent with minimal impacts on public safety and court appearance rates.

Supporters of cash bail decried a proposed reform package in Illinois as a “purge law” that would make certain crimes non-detainable. New York’s Republican gubernatorial candidate Lee Zeldin made overturning the 2019 law a cornerstone of his campaign, and bail reform was a key feature of GOP attack ads across the country in the 2022 midterms.

However, those attacks don’t hold up to scrutiny. A Harvard meta-analysis was unable to find a link between reforms and crime after reviewing seven studies on bail reform. Harris County’s bail reform slightly decreased crime, since defendants were less likely to re-offend, according to a UPenn study.

We also must remember that people detained on bail aren’t automatically criminals. They haven’t been convicted on their charges and would’ve been able to walk free if they’d just been wealthier. By treating the legally innocent as guilty criminals, we unjustly sacrifice others’ freedom for a false veneer of public safety.

Bail reform must be enacted where they don’t exist and defended where they do.  

Featured Illustration by Felicia Tshimanga