State legislation pays off for bail reform

By Cindy Zhao Apr. 28, 2021

Ivan Zhu Art

In a landmark March 25 decision, the California Supreme Court decided unanimously that courts must consider the ability of a defendant to pay cash bail before imposing the condition on them for pretrial release. The ruling marks the most recent triumph for those revisiting California’s “tough on crime” criminal justice policies from the 1970s, which, according to the Vera Institute of Justice, has increased California’s incarcerated population by 180 percent.

In the U.S., when someone is arrested, they are temporarily detained in a jail facility for the safety of the public until their trial. The duration of their stay, which should rest on whether they pose a threat to the local community, is often dependent on their ability or inability to make bail—the conditional release of a defendant on collateral payment subject to forfeiture if the defendant later fails to show up in court. Technicalities aside, bail meant that those who could afford it have bought their way out of jail.

According to the Prison Policy Initiative, nearly half a million people in the U.S. are currently detained pretrial, the majority being unable to afford bail.

According to the Prison Policy Initiative, nearly half a million people in the U.S. are currently detained pretrial, the majority being unable to afford bail. 66 percent of women unable to pay bail have children under the age of 18, and 43 percent of America’s pretrial population is Black—evidence of bail’s association with economic and racial disparities in the justice system.

“Bail should be banned, since it defeats the purpose of a proper trial and penalty given. Being able to pay to get out of jail gears the justice system towards the wealthy, which are mostly white people,” Sophomore Elena Giaconne said.

Earlier this year, Illinois passed legislation to abolish cash bail payments to release people awaiting their trial from jail, making it the first state to take on monumental bail reform. The Illinois Pre-Trial Fairness Act is part of a sweeping package of criminal justice measures that constitutes Illinois House Bill 3653, sponsored by Black lawmakers who were galvanized by the summer protests over-policing and racial and social justice.

Bail bonds are not simply unjustifiably high, but they also vary widely.

Bail bonds are not simply unjustifiably high, but they also vary widely. According to the Guardian, bond amounts for the petty offense of public drunkenness ranged from 75 to ten thousand dollars across 56 California counties. Arrestees who cannot afford bail are forced to sit in jail for weeks on end and often lose their job, housing and even custody of their children as they wait for their cases to be heard. They are functionally serving a sentence before they are even convicted, which constitutes unlawful imprisonment. While some argue that releasing these people from detention could pose a risk to the public, research from the National Center for State Courts shows that three out of four criminal cases in state trial courts are of misdemeanors. Even if proven, the charges would only result in either petty fines or less than a year in jail. In the case of the Illinois House Bill 3653, research regarding successful bond and pretrial release reform in one of Illinois’ counties demonstrates that eliminating cash bail does not threaten public safety.

Within bail reform, advocates have either sought policy changes to the bail system or attacked bail as unconstitutional. However, previous reforms have been unsuccessful—in New York and Alaska, bills were watered down during the political process, while in California, voters chose to keep cash bail over passing Proposition 25, which would have replaced the money bail system with a new computerized system based on public risk. Illinois officials, on the other hand, expect the no cash bail policy to be fully implemented by January 2023, which offers enough time to work out any challenges.

“Ending cash bail is the first step to creating a more equitable criminal justice system and an important step in ensuring the reevaluation of the pretrial process. Other states should model off of Illinois’ provisions to reform cash bail,” Freshman Juhi Khetawat said.

Cash bail has undoubtedly conditioned freedom on money. With a state court decision that struck down huge parts of the cash bail system in California and a statewide effort to eliminate money bail in Illinois, there is still hope for the future, and half a million legally innocent people are waiting.

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About the Contributors

Cindy Zhao

Lifestyle Editor

Cindy Zhao is a junior and the Lifestyle editor. She likes to take pictures of anything that catches her eye and occasionally publishes bad writing on her blog. Junior year is terrifying for her; all they want to do is read all day. They are also severely sleep deprived. Beware.