America’s judicial bail system has been criticized as being racist and exploitative of those with little financial means, and there are studies and research to support both claims. During the COVID-10 pandemic the racial and economic disparities became more pronounced.
Some states and cities have made attempts to improve the bail system to make it more fair. One method is for a judge to allow people charged with low-level crimes but without the means to pay bail a chance at release if they have a job, family obligations or other factors.
Now, one of President Donald Trump’s latest executive orders would undo many reforms that have proved to be successful. The executive order instructs the U.S. Attorney General to investigate which jurisdictions have cashless bail and give them notice to abolish it under threat of withholding federal funding. He signed a separate order specifically for Washington, D.C.
If it sounds like a broken record that’s because it is. Many of the president’s executive orders threaten federal funding if affected entities don’t comply with his demands. Some of his executive orders have drawn lawsuits; the cashless bail order will most likely do the same.
America remains No. 1 when it comes to the percentage of residents who are incarcerated. Especially for people not convicted of a crime, incarceration can be disruptive to individuals and families. Cashless bail provides alternatives to incarceration that don’t punish people for being poor, yet protects the community as well. Common pretrial, nonmonetary conditions for misdemeanor charges include pretrial supervision, remote electronic monitoring and no-contact orders. Judges can deem a person’s employment history or family obligations as a reason not to hold someone behind bars simply because they can’t pay for their release.
Economically, alternatives to cash bail make sense. It costs about $11,500 a month to house a person in the King County Correctional Facility, according to county officials.
A Brennan Center for Justice study found that there’s no correlation between bond reform and an increase in suspects reoffending while out on bail.
“The system disproportionately impacts the poor and minorities, essentially criminalizing poverty,” said Jazmyn Clark, director of the Smart Justice Policy program with ACLU of Washington.
For a person experiencing homelessness accused of a low-level offense, a bond of $250 would mean they would have to come up with $25. For many unsheltered people, that is unattainable. But for those with greater financial means facing a more serious charge, and potentially more of a threat to the public, a $5,000 bond, or $500, may easily be paid.
Cashless bonds have a place in our judicial system and judges should retain the right to use them. Any attempt to heavy-handedly dictate anything else should be rebuffed.
