It’s currently easier for the rich to avoid pre-trial detention than the poor. Should that change?
Ostensibly, a person is only supposed to go to jail if they’re convicted of a crime. Yet if a person is deemed by a judge to be a likely public safety risk, or a likely flight risk to avoid prosecution, they can be kept in jail as a precautionary measure after merely being arrested.
When this happens, their bail is set at a certain dollar amount, essentially a price at which they can remain free until their trial. The more serious the crime, the higher the bail required. Either the arrestee themselves can pay the bail, or somebody else like a friend or family member can pay a bond on their behalf.
But if neither the arrestee nor anybody they know can pay the required amount, they remain jailed. The issue achieved greater national prominence with the case of Kalief Browder, a Bronx teenager who was kept in jail for three years without trial when neither he nor anybody he knew could afford his $3,000 bail/bond. The case inspired a New Yorker feature article and the documentary series Time, available on Netflix.
For comparison with two prominent cases in recent years, Bill Cosby easily posted his $1 million bail after arrest for sexual assault, while Minneapolis ex-police officer Derek Chauvin also posted his $1 million bond after arrest for second-degree murder in the death of George Floyd.
As a result, many — especially on the left — criticize the existing bail system for letting the rich walk away scot-free, at least until their trial or potential conviction, while those of lesser means can sometimes spend years in jail without getting convicted. In February, Illinois became the first state to eliminate cash bail entirely.
(Despite its left-leaning reputation, California could have become the first state to eliminate cash bail a few months prior, in November 2020. However, California voters rejected Proposition 25 by a double-digit margin, 56% to 44%.)
What the bill does
The No Money Bail Act would ban the use of cash bail for federal criminal cases, and withhold Justice Assistance Grants to states which continue to use the practice at a state level.
It was introduced in the House as H.R. 1249, by Rep. Ted Lieu (D-CA33).
What supporters say
Supporters argue the bill would eliminate a practice that essentially provides a literal “get out of jail free” card for those with more money.
“We cannot both be a nation that believes in freedom and equal justice under the law, yet at the same time, locks up thousands of people solely because they cannot afford bail,” Rep. Lieu said in a press release upon introducing a previous version of the bill. “We cannot both be a nation that believes in the principle of innocent until proven guilty, yet incarcerate over 450,000 Americans who have not been convicted of a crime.”
“Throughout the nation, those with money can buy their freedom while poor defendants stay behind bars awaiting trial. Further horrifying, many people decide to plead guilty purely to get out of jail because they cannot afford bail,” Rep. Lieu continued. “America should not be a country where freedom is based on income.”
What opponents say
Opponents counter that the current cash bail system, despite its flaws, overall provides a malleable way to tailor tentative punishment to risk likelihood.
“Existing judicial reviews and pre-trial assessments also help address concerns about a cash bail system favoring those with financial means,” San Diego County Sheriff William D. Gore wrote in a San Diego Union-Tribune op-ed.
“Bail increases can be requested to accommodate for special circumstances and applicable holds can be placed on arrestees precluding them from release despite posting bail,” Gore continued. “Furthermore, inmates can request a bail review, which must be held within five days, where a judge can adjust bail based on the individual circumstances.”
According to Gore, the numbers indicate that the status quo is effective.
“Currently, 70 percent of arrested inmates in San Diego County are released within three days. Minor, nonviolent offenders are not faced with high bail requirements as it is,” Gore cited. “In 2019, 99 percent of pretrial defendants on supervised release were not charged with a new offense while awaiting trial, and 94 percent of those defendants made every scheduled court appearance. The current system works well in San Diego.”
Odds of passage
Rep. Lieu previously introduced the bill three times. His 2016 and 2017 versions attracted 33 Democratic cosponsors and 38 Democratic cosponsors, respectively, but never received votes in the then-Republican controlled chamber.
Then his 2019 version only attracted four Democratic cosponsors, a plummet in support that’s difficult to explain. That version never received a vote in the House Judiciary Committee, despite being controlled by Democrats at the time.
With the caveat that it’s only been out for a few days, the current version has attracted seven Democratic cosponsors — slightly more than the prior 2019 version, but dozens less than the 2016 and 2017 versions. It awaits a potential vote in the House Judiciary Committee.