Justice for Sale: Why Cash Bail Violates Constitutional Protections

Djibril Niyomugabo was a Rwandan refugee living in Grand Rapids, Michigan, with little family and an unsettled home life. In 2016, when he was 18, he was accused of smashing a car window and breaking a bottle of wine inside the vehicle. He pleaded not guilty and was subject to a $200 bail, which he was unable to afford. After three days in the Kent County Jail, Djibril hanged himself in his jail cell [1].

This story, unfortunately, is not isolated. Currently, 536,000 people are in jail awaiting their trial, the majority unable to afford bail [2]. Bail has historically been used to ensure that those accused of a crime would return to their upcoming trials. Cash bail systems have existed for centuries, originating in Europe as a preventative measure for blood feuds. However, at the founding of America, the Founding Fathers wanted to secure the right to justice and fairness in the legal system [3]. In the early 20th century, cash bail shifted from personal bails to commercial bonds because they were more profitable. Personal bails were a debt that the accused person’s family would pay to the victim’s family. A surety, or member of the accused person’s family, would also be indebted to repay, but they could not profit in doing so. In the shift from personal to commercial, bond agents were profiting from people’s bails. Courts also began to allow people to pay bail themselves, which, of course, favored those in the position to afford it. Further into the 20th century, America’s incarceration grew at unprecedented rates, causing the use of bail rates to also explode. This commercial switch was not similar to the rest of the world; England had a decline in personal bails and instead encouraged judicial discretion [4]. To this day, the United States and the Phillipines are the only countries that allow cash bail [5].

Cash bail systems exacerbate and reinforce mass incarceration, contributing to increased homelessness and recidivism rates. Between 1990 and 2011, the number of people given cash bail grew from 37 percent to 61 percent. Further, the average bail amount rose from $25,000 to $55,400 [6]. Cash bail is associated with a six to nine percent recidivism rate, meaning that those who are detained are more likely to commit another crime and be incarcerated again. Further, homelessness is associated with incarceration. Behaviors like sleeping outside, public urination, and loitering are criminalized, so when homeless rates increase, incarceration rates also increase. Cash bail systems can often lead to people losing access to housing, also contributing to a larger homelessness and incarceration problem [7].

Cash bail systems affect marginalized communities significantly more than those who are privileged, both racially and economically. Black and Latino men are 35 and 19 percent more likely to have higher bail amounts than their white counterparts, respectively [8]. These amounts are about $9,932 more, on average, for Black men compared to white men. These racial disparities are often attributed to a combination of statistical discrimination — referring to the use of statistics in legal decision making — and racial bias, referring to the use of stereotypes like the inherent criminality of Black people to make bail decisions [9]. Further, those who are unable to afford bail are likely economically marginalized. Studies find that those who are unable to afford bail are in the poorest third of society. On average, they have an income of $15,109 per year: drastically lower than both non-incarcerated and incarcerated people [10]. Those who are financially well-off are significantly more able to pay their bail. The effects of detainment, especially for those who are low-income to begin with, cannot be understated. Those detained can face loss of employment and housing, and risk losing their custodial arrangements or food security. A survey of women detained in Massachusetts found that almost half were at risk of losing their housing because they were in custody [11]. When those detained are low-income, this means that the effects snowball, leading them to become further economically marginalized. This does not even take into account how cash bail systems affect the families of those detained. In the 2002 Survey of Inmates in Local Jails across America, surveyors found that 53 percent of men and 66 percent of women were parents of minor children, leaving children to be separated from their parents for long periods of time [12]. Further, the adverse effects from being detained have impacts on the mental health of children, including depression, anxiety, and suicidal ideation [13].

The constitutionality of cash bail systems has been a debated topic for decades now. The two amendments most relevant to this are the Eighth and Fourteenth Amendments. The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” [14]. The reason that cash bail is still permitted, even if any reasonable person would consider these amounts to be excessive, is because “excessive” is defined by the courts as any amount necessary to prevent the alleged wrongdoing. Practically, this is quite problematic: those who are unable to afford bail cannot afford it regardless of the amount assigned to the wrongdoing. Further, there is no restriction on other factors taken into consideration for bail, such as flight risk or economic situation of the detained person [15]. However, the Founding Fathers never intended for bail to be such a large issue. They wanted to ensure a fair justice system that held all people accountable, regardless of the amount of money they had. The Eighth Amendment was derived from the English Bill of Rights and the Virginia Bill of Rights, which was the precursor to the American Constitution. These precedents set it so that the prohibition of excessive bail was implied in the Constitution. The interpretation was simple: to protect the rights of those detained from a corrupt government or legal system [16]. Therefore, it is only sensible that there should be regulations on the cash bail system under the Constitution.

The Fourteenth Amendment states that the government cannot deprive the “life, liberty, or property” of any person without due process of law and established equal protection of the law [17]. This Equal Protection Clause guarantees the rights of all people regardless of their various statuses including race, ethnicity, and most relevant here, class. Class is a status. Those of lower class are unable to pay their bail, and are subsequently detained in jail for an indefinite period of time. Therefore, the Fourteenth Amendment should prevent the cash bail system. This system is set up so that people who are unable to afford bail are forced to serve jail time. Is this not a direct violation of due process and the right to life and liberty? The amount of money that a person has should not determine their detainment. Alternatively, those with more economic resources are able to avoid detainment. Allowing more privileged people to avoid detainment simply because of their access to resources is simply unethical and unfair. Given the statistics available on who is unable to afford bail, this plays into both race and class. Those who are racially and economically marginalized are remarkably more likely to not be able to afford bail, and will be detained for doing so. This violates the right to due process based on equal protection, and therefore should be considered a constitutional violation.

There is also significant legal precedent regarding cash bail. First, the Bail Reform Act, passed by Congress in 1966, states that federal courts should not use cash bail unless they are certain that the defendant will not return to court. This Act decreed that unless a capital crime is alleged, there should be no bail, and that non-financial conditions should be imposed on defendants. In 1984, this Act was amended and a new standard was added: danger to the community must be considered when determining bail amount [18]. This revision was controversial because it did not account for one’s ability to pay bail. The Act was challenged in Salerno v. United States. In this case, it was alleged that Salerno was a member of the La Cosa Nostra crime family. Salerno argued that the bail amount assigned to his case constituted excessive bail. The Court ruled in favor of the Bail Reform Act, stating that public safety outweighs protecting individual liberty [19].

What former precedent fails to recognize is that the majority of the people given bail are not a danger to their community; they are often charged with petty crimes or drug offenses. Yet, they are still subject to these horrific cash bail practices. A more recent Supreme Court case reflects this argument. In Daves v. Dallas County, several plaintiffs — most accused of misdemeanors — were subject to Dallas County’s policy for bail. This policy states that if one cannot afford bail, they are subject to staying in jail for weeks or even months due to the backlog of their justice system. The results of this policy were disastrous; many of the plaintiffs became homeless, lost their jobs, and at the time the case reached the court, were still detained or kept in solitary confinement. District court judge David Godbey ordered that the county change its bail policy, stating that, “Wealthy arrestees —regardless of the crime they are accused of — who are offered secured bail can pay the requested amount and leave. Indigent arrestees in the same position cannot. Indeed, the equal protection issue that plagued O’Donnell is not cured by adding more arrestees to the mix. The Court thus finds that Plaintiffs have a substantial likelihood of succeeding on their equal protection claim” [20]. Judge Godbey argued that the policy violated the equal protection rights of those unable to afford their bail. Their due process was being violated simply because of their inability to pay their bail. This judge’s rule was appealed, however, and when the case was brought to the Supreme Court, they declined to review the case.

The Supreme Court has a duty in interpreting and upholding the Constitution. Therefore, they can and must review cases concerning cash bail systems, regardless of whether the systems are federal or state. The right to due process, liberty, presumption of innocence, and equal protection are all at stake in cash bail. These rights cannot be undermined, but constantly are under this system. Instead of cash bail, state and federal courts can use community policing and monitoring to ensure that defendants return to court. Implementations of community based systems would include the use of check-ins and even access to transportation for court appearances through community volunteers. Check-ins could include phone calls and texts, or in more extreme cases, home visits or meetings at a community center. The government has a responsibility to invest into marginalized communities, rather than extracting from them. In using community support, those unable to pay bail would instead be given resources to be able to meet their court dates. These resources would not be punitive, but supportive and humane. Access to transportation and other resources, like legal assistance and social services, would reduce the rates of recidivism and would still allow for court appearance dates. For too long, our government has supported prisons and jails, which are actively harming our communities, especially those most vulnerable. Cash bail reform cannot be done by individuals or institutions, as it has historically been, but instead by communities. We must invest into these communities to see change that reduces recidivism and treats those in our criminal justice system as human beings. Justice must not be bought, but guaranteed to every person in our society.

Bibliography

[1] ACLU of Michigan. “Stories from a Broken Bail System.” ACLU of Michigan. Accessed May 20, 2024. https://www.aclumich.org/en/stories-broken-bail-system.

[2] Onyekwere, Adureh. “How Cash Bail Works.” Brennan Center for Justice, February 24, 2021. https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works.

[3] Manzano, Nicole Zayas. “The High Price of Cash Bail.” American Bar Association, April 12, 2023. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/economic-issues-in-criminal-justice/the-high-price-of-cash-bail/.

[4] Hill, Caitlin. “A Brief History of Cash Bail.” ACLU of Ohio, December 12, 2017. https://www.acluohio.org/en/news/brief-history-cash-bail.

[5] “Smart Justice - Ending Cash Bail.” ACLU Pennsylvania. Accessed May 20, 2024. https://www.aclupa.org/en/smart-justice-ending-cash-bail#:~:text=In%20the%20past%20three%20decades,doubled%20from%20%2425%2C000%20to%20%2455%2C400.

[6] Ibid.

[7] Preston, Allie. “5 Ways Cash Bail Systems Undermine Community Safety.” Center for American Progress, November 3, 2022.

[8] Ibid.

[9] Arnold, David, Will Dobbie, and Crystal S. Yang. "Racial Bias in Bail Decisions." The Quarterly Journal of Economics 133, no. 4 (November 2018): 1885-1932. https://doi.org/10.1093/qje/qjy012.

[10] Rabuy, Bernadette, and Daniel Kopf. “Detaining the Poor: How Money Bail Perpetuates an Endless Cycle of Poverty and Jail Time.” Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time | Prison Policy Initiative, May 10, 2016. https://www.prisonpolicy.org/reports/incomejails.html.

[11] “Smart Justice - Ending Cash Bail.” ACLU Pennsylvania. Accessed May 20, 2024. https://www.aclupa.org/en/smart-justice-ending-cash-bail#:~:text=In%20the%20past%20three%20decades,doubled%20from%20%2425%2C000%20to%20%2455%2C400.

[12] Sawyer, Wendy. “How Does Unaffordable Money Bail Affect Families?” Prison Policy Initiative, August 15, 2018. https://www.prisonpolicy.org/blog/2018/08/15/pretrial/.

[13] Preston, Allie. “5 Ways Cash Bail Systems Undermine Community Safety.” Center for American Progress, November 3, 2022. https://www.americanprogress.org/article/5-ways-cash-bail-systems-undermine-community-safety/.

[14] U.S. Const. amend. VIII.

[15] “Excessive Bail.” Legal Information Institute. Accessed May 20, 2024. https://www.law.cornell.edu/wex/excessive_bail.

[16] “About Bail - History of Bail - PBUS.” Professional Bail Agents of the United States. Accessed May 27, 2024. https://www.pbus.com/page/14.

[17] U.S. Const. amend. XIV.

[18] VanNostrand, Marie, and Gena Keebler. "Our Journey Toward Pretrial Justice." Federal Probation Journal 71, no. 2 (September 2007).

[19] United States v. Salerno, 481 U.S. 739 (1987).

[20] Daves v. Dallas County, No. 18-11368 (5th Cir. 2022).