Isabella Carter
The bail process in the United States has been criticised for its wealth-based incarceration, with people's ability to leave jail and return home dependent on their access to money. The Eighth Amendment prohibits excessive bail, and critics argue that the current system violates the Fourteenth Amendment's Equal Protection Clause. While the Bail Reform Act of 1984 aimed to address this, it has been criticised for allowing the wealthy to avoid pretrial detention. Some states, such as Illinois, have abolished cash bail, while organisations like the ACLU work to end the for-profit bail industry.
| Characteristics | Values |
|---|---|
| Excessive bail | Violation of the Eighth Amendment |
| Preventive detention | Upheld under the Due Process Clause of the Fourteenth Amendment |
| Wealth-based incarceration | Violation of the Fourteenth Amendment's Equal Protection Clause |
| Racial discrimination | Violation of the Equal Protection Clause |
| Violation of the right to a speedy trial | Violation of the Sixth Amendment |
| Violation of due process | Violation of the Fourteenth Amendment |
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What You'll Learn
Excessive bail and the Eighth Amendment
The Eighth Amendment of the US Constitution states that "excessive bail shall [not] be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". This amendment applies to the states through the Fourteenth Amendment.
The Eighth Amendment is violated when bail is set at a figure higher than an amount reasonably calculated to ensure the defendant's presence at trial. The fixing of bail for any individual defendant must be based on standards relevant to the purpose of assuring the presence of that defendant. The Court has explained that the government's proposed conditions of release or detention should not be 'excessive' in light of the perceived evil. For example, in United States v. Salerno, the Court upheld the application of preventive detention provisions of the Bail Reform Act of 1984, explaining that the function of bail is not limited to preventing the flight of the defendant prior to trial.
The bail system has been criticised for increasing the jail population and making America's incarceration problem worse. On any given day in 2020, roughly 630,000 people were locked up in local jails, most of whom had not been convicted of a crime. In virtually all jurisdictions, people are required to pay cash bail to secure their freedom. This has resulted in wealth-based incarceration, where poorer defendants are more likely to be incarcerated pre-trial than wealthier defendants, even if they are accused of the same crime and pose the same risk to the community. This has been described as a violation of the Fourteenth Amendment's Equal Protection Clause.
Some states have started to implement bail reforms that consider the individual in deciding whether someone can be released, rather than just their financial resources. For example, Illinois became the first state to completely abolish cash bail and invest in alternatives to promote pretrial release.
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Preventive detention and due process
The concept of "preventive detention" is a highly contentious issue in the context of bail and due process. Preventive detention refers to the practice of incarcerating accused individuals before trial, based on the assumption that their release would not be in society's best interest, as they may commit additional crimes or hinder an ongoing investigation. This notion directly impacts the due process rights of individuals, as it involves the denial of bail and subsequent detention without a trial or conviction.
In the United States, the debate surrounding preventive detention and due process has been particularly prominent. The Eighth Amendment of the Constitution explicitly states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This amendment sets a crucial limitation on the government's ability to set bail, emphasising that it should be reasonably calculated to ensure the government's interests, such as the defendant's presence at trial.
However, the interpretation and application of "excessive bail" have been subject to legal disputes. In United States v. Salerno (1987), the Supreme Court addressed the constitutionality of preventive detention. The Court upheld that preventive detention did not violate the due process clause of the Fifth Amendment or the excessive bail provision of the Eighth Amendment. This decision set a precedent, and several states subsequently adopted preventive detention laws.
Despite this, critics argue that preventive detention infringes on due process rights. In the Supreme Court case, Justice Marshall passionately dissented, highlighting the implications of allowing preventive detention. He critiqued the majority's analysis for separating and treating in isolation the due process and Eighth Amendment concerns. Marshall emphasised that the conclusion reached by the Court undermined the importance of bail and could lead to the widespread denial of bail by judges.
The American Civil Liberties Union (ACLU) has also actively advocated for bail reform, challenging the current bail system as unconstitutional. They argue that the system violates the rights to due process and equal protection under the Fourteenth Amendment, the prohibition against excessive bail in the Eighth Amendment, and the right to a speedy trial in the Sixth Amendment. ACLU's efforts have led to significant victories, such as bail reform in New Jersey and the abolition of cash bail in Illinois.
In conclusion, the issue of preventive detention and due process is a complex and ongoing debate. While preventive detention has been deemed constitutional by the Supreme Court, concerns remain about its potential to infringe on individuals' due process rights. As a result, organisations like the ACLU continue to work towards bail reform, aiming for a more equitable and just system that protects the rights of all individuals.
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Wealth-based incarceration
The bail system in the United States has been criticised for perpetuating wealth-based incarceration, where access to money determines a person's freedom after an arrest. In most jurisdictions, people are required to pay cash bail to secure their freedom, leading to a system that disproportionately affects those who cannot afford to pay. This has resulted in a growing jail population, with the majority of those incarcerated being people who have not been convicted of a crime.
The Eighth Amendment of the U.S. Constitution states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". This amendment is intended to prevent bail from being set at a figure higher than what is reasonably calculated to ensure the defendant's presence at trial. However, critics argue that the current bail system violates this amendment, as well as the Fourteenth Amendment's Equal Protection Clause. The Fourteenth Amendment restricts excessive bail at the state level, and the Equal Protection Clause states that laws should apply equally to everyone, regardless of race or gender.
The American Civil Liberties Union (ACLU) is working to end the for-profit bail industry, which profits from the current bail system. They argue that current bail practices violate the rights to due process and equal protection under the Fourteenth Amendment, the prohibition against excessive bail in the Eighth Amendment, and the right to a speedy trial guaranteed by the Sixth Amendment. ACLU's Campaign for Smart Justice aims to end the unjust bail system and promote alternatives to pretrial release.
Some states, such as New Jersey and Illinois, have already implemented bail reforms. New Jersey's reforms consider individual factors rather than solely focusing on monetary amounts, while Illinois became the first state to abolish cash bail entirely. Additionally, in March 2021, the California Supreme Court ruled that individuals cannot be detained solely due to their inability to pay cash bail. These reforms aim to create a more equitable and effective justice system, reducing the impact of wealth-based incarceration.
The bail system has been criticised for disproportionately affecting people of colour from low socioeconomic backgrounds, further violating the Equal Protection Clause. Test data from New Haven, Connecticut, revealed racial discrimination in the bail bond market, with black and Hispanic defendants receiving disproportionately high bail charges. To address this issue, some have proposed a "colour-blind" approach, setting bail based on the average offender, regardless of race or gender.
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Racial discrimination in bail-setting
The Eighth Amendment of the US Constitution states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". This is further supported by the Fourteenth Amendment, which applies these restrictions to the States. However, the US Constitution does not confer a right to bail.
Bail is considered "excessive" and in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest. The fixing of bail for any individual defendant must be based on standards relevant to the purpose of assuring the defendant's presence at their trial.
The bail system in the US has been criticised for its racial disparities, with Black and Latinx individuals disproportionately incarcerated, denied parole, and kept on community supervision. Observational comparisons can suffer from included variables bias (IVB) when they adjust for non-race characteristics, such as criminal history and crime type. Randomized audit studies can test whether decision-makers treat fictitious white and Black individuals with the same non-race characteristics in the same way. However, they do not capture disparate impacts that arise via non-race characteristics and are often infeasible in high-stakes and face-to-face settings such as bail decisions.
In New York City, it was found that two-thirds of the release rate disparity between white and Black defendants was due to the disparate impact of release decisions, with evidence of both racial bias and statistical discrimination. Black individuals are more likely to be searched by the police, charged with a serious crime, detained before trial, convicted of an offence, and incarcerated. The impact of racial disparities in bail-setting and pretrial release decisions can last far beyond the pretrial stage, leading to higher conviction rates, longer sentences, and collateral consequences such as loss of employment, housing, and public benefits.
Some states have started to implement bail reforms that consider the individual when deciding whether someone can return home, rather than solely how much money they have. Illinois has become the first state to completely abolish cash bail and invest in alternatives to promote pretrial release.
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Bail reform and alternatives
Bail reform advocates argue that the current bail system in the United States perpetuates wealth-based incarceration, with a person's freedom hinging on their access to money. This has resulted in mass pre-trial jailing, with the majority of those incarcerated not having been convicted of a crime. The American Civil Liberties Union (ACLU) and other organisations are campaigning for bail reform to end this injustice and hold that current bail practices are unconstitutional.
In 2020, Illinois became the first state to abolish cash bail and invest in alternatives to promote pre-trial release. New Jersey has also implemented bail reforms that consider the individual in deciding whether they can return home, rather than just their financial situation. These reforms are a step towards a more equitable and effective system.
Some alternatives to the current bail system include:
- Simple solutions such as court reminders can help ensure that individuals return to court to face charges without requiring cash bail.
- Prosecutors can play a role in bail reform by limiting diversion fees, offering meaningful alternatives to counterproductive fines, and advocating for assessing fines and fees on a sliding scale or eliminating them for young people.
- Elected prosecutors can support alternative mechanisms to fund courts, rather than relying on fines and fees that can lead to perpetual cycles of debt and incarceration.
- Judges can act as "ultimate gatekeepers" and establish a presumption of recommending release.
These alternatives aim to address the issues of wealth-based incarceration and mass pre-trial jailing, promoting a more just and equitable criminal justice system.
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Frequently asked questions
Bail is considered excessive when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest.
The bail process has been criticised for violating the rights to due process and equal protection under the Fourteenth Amendment, the prohibition against excessive bail found in the Eighth Amendment, and the right to a speedy trial guaranteed by the Sixth Amendment.
In virtually all jurisdictions, people are required to pay cash bail to secure their freedom. This means that wealthier defendants are less likely to be incarcerated pre-trial than poorer defendants, even if they are accused of the same crime.
Some states have started to implement bail reforms that consider the individual in deciding whether someone can return home, rather than just their financial resources. For example, Illinois became the first state to completely abolish cash bail and invest in alternatives to promote pretrial release.
