A Human Rights Watch study found that of those arrested in New York City in 2008 on non-felony charges where bail was set for $1,000 or less, 87 percent were unable to post bail. Nearly three-quarters of those incarcerated in the study were accused of nonviolent, non-weapons related crimes such as shoplifting or trespassing. According to the Bureau of Justice Statistics of the U.S. Department of Justice, 62 percent of the incarcerated population in the U.S. is made up of detainees awaiting trial. Former Supreme Court Justice Arthur Goldberg explained that, “After arrest, the accused who is poor must often await the disposition of his case in jail because of his inability to raise bail, while the accused who can afford bail is free to return to his family and job … This is an example of justice denied, of a man imprisoned for no reason other than his poverty … .”
Bail requirements are designed to provide defendants with an incentive to attend scheduled court proceedings by threatening monetary loss if they fail to appear in court. Judges have broad discretion to set the amount of bail, so long as the amount set is within the constitutional confines of the Eighth Amendment, which prohibits the imposition of excessive bail. The amount of bail should be no more than is reasonably needed to keep the suspect from fleeing before or during the case. Unable to make bail, indigent defendants must often spend time in jail awaiting trial. In addition to the stressful and often violent experience of imprisonment, pretrial detention can cause defendants to lose jobs and income, keeps defendants from caring for children or sick relatives, and prevents school attendance.
This system of monetary bail requirements unfairly denies indigent defendants their right to liberty and therefore contravenes both the U.S. Constitution and persuasive international customary law. For instance, Article 9 of the Universal Declaration of Human Rights prohibits arbitrary detention and Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992, states that, “everyone has the right to liberty and security of person.” In addition, ICCPR Article 2(1) requires the protection of the rights outlined in the Convention, including the right to liberty, “without distinction of any kind,” and specifically identifies “property” as a prohibited basis for discrimination. Although the UDHR and the ICCPR are not enforceable on the U.S., the absence of enforceable international obligations imposed on the U.S. may be one of the reasons why this system of monetary bail requirements has not been amended and continues to unfairly deny indigent defendants their right to liberty.
Defendants who are unable to post bail are punished through extended imprisonment prior to any guilty verdict. Also, the threat of confinement or continued confinement often causes defendants charged with misdemeanors to plead guilty because many misdemeanors do not carry a prison sentence, and defendants can often plea bargain for a lesser punishment. Some U.S. cities have implemented reform measures that have significantly reduced the number of pre-trial detentions. In 1982, Philadelphia decreased the number of people detained for failure to post bail by 26 percent by implementing new bail guidelines based on empirical data. Bail guidelines are similar to sentencing guidelines in that they delineate what arraignment decisions are most appropriate for individual defendants. Unfortunately, these guidelines became outdated and many judges have chosen to ignore them, causing a relapse to the old pretrial detention problem. However, Philadelphia and other cities can use up-to-date empirical data to better predict which defendants pose the highest risk of missing their court appearances, and in turn only require monetary bail from high risk defendants.
Allegheny County, in southwestern Pennsylvania, expanded on the Philadelphia model by creating a pretrial services agency that obtains detailed information about defendants and assesses their threat to the community and their risk of missing court appearances. The pretrial services agency also uses many non-monetary bond options, including a call-in and in-person reporting system, drug testing, and electronic monitoring. Washington, DC also uses a pretrial services agency and tries to minimize pretrial detention for indigent defendants because, “non-financial conditional release … is more effective than financial release conditions. Reliance on money bail discriminates against indigent defendants and cannot effectively address the need for release conditions that protect the public.”
Other U.S. cities can use these models to decrease the number of indigent defendants who are detained for failure to post bail. Although current bail policies in many U.S. jurisdictions are discriminatory and violate the U.S. Constitution’s prohibition on excessive bail fees, these jurisdictions can adopt policies used in places such as Allegheny County and Washington, DC to significantly improve this situation.