In the early summer of 2015, the country took note of the tragic suicide of Kalief Browder, a man held in Rikers Island for three years for a crime he didn’t commit and didn’t even get to challenge in court. Other inmates in similar circumstances are still languishing in jail, their only crime being that they can’t afford bail. Just this week, the Department of Justice spoke out, saying they see the bail program as unconstitutional.
That same month in 2015, John Oliver dedicated his weekly long-form segment on Last Week Tonight to how unfair the bail system is, making it essentially a jailable crime to be poor. Yes, those who have to deal with bail are suspects of one crime or another. Yet, folks like Browder languish in jail for crimes less serious than those of, for example, Robert Durst who freely admitted he paid bail and planned to skip town as soon as he did.
Bail’s intended purpose is to ensure that the accused returns to court in order to have the money returned to them. Public defender Rachel Marshall elaborates on this in an essay for Vox:
The truth is if someone is looking to flee, he is probably going to flee regardless of whether there is money at stake. Indeed, for someone with a lot of money, the money posted for bail may be insignificant. For another who struggled to post bail through a bondsman, he probably wouldn’t be able to pay the bondsman the remaining 90 percent of the bond anyway, even if he did skip town, so even if the bondsman comes after him for the rest of the money, it will be difficult to recover it from someone with nothing.
So, it’s a huge step that the DoJ has declared the bail system unconstitutional, but it will take a Supreme Court ruling for that statement to have any actual weight. Most of these programs are run at the local and state level, which will likely argue that the bail system is protected by their rights under the Tenth Amendment.
One alternative to bail is a program in Washington, D.C. in which suspects are evaluated as flight risks through a pretrial program. It was expensive to begin, but in the more than 20 years since the program has been instituted 90 percent of those facing charges showed up to court, and an astounding 98 percent avoided any further significant arrests while their cases were pending.
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