Cash Bail
In light of Illinois becoming the first state to abolish cash bail, I wanted to share some thoughts on the topic. The elimination of cash bail is incredibly polarized. Some want to see it abolished because it disproportionately keeps those of lesser means in jail before their case can be heard and allows those of means to be get out sooner, potentially to commit the exact same crime, tamper with witnesses or spoil evidence. Others with a tough on crime stance want the practice to remain because they do not want violent criminals released while their case progresses through the criminal justice system. As with many issues, both sides have good intentions.
It is important to remember our system of law and order is built on the presumption of innocence which means, just because someone is accused of a crime and detained, it does not automatically mean the person is guilty. A judge or jury must hear facts and evidence to determine if the accusation is true. The accused may have to wait weeks, months, or (especially during COVID) years until they get to trial. This can be problematic because, during this time, the person can lose any number of things including their job, housing or custody of their children. When the system of pre-trial detention is based on money collateral, this disproportionately impacts those of lesser means. Some judges set standard cash bail amounts of $5,000 to $10,000 for many small, non-violent crimes. Given approximately 37% of households do not have $400 to cover an emergency, the bail amounts can be too high for many. It results in overcrowded jails full of individuals who cannot make bail, which ultimately is a burden on taxpayers who foot the bill for housing these individuals.
Now you might be thinking – sure, but not everyone is innocent. What if the cops catch someone in the act of a violent crime? Absolutely, dangerous criminals be detained until their trial. But for those that are violent criminals AND have money, they can make bond and walk the streets, free to potentially commit other crimes while their case slowly works its way through the criminal justice system.
So what are the solutions? A knee jerk reaction to make the system “fair” could be that all accused people stay in jail until they go to trial but that goes counter to the notion of innocent until proven guilty. Judges ultimately have to make judgment calls (hence their name) so, rather than setting a cash bail amount, they could perhaps hear brief arguments from the prosecutor and the defendant’s council as to whether the accused should be released pre-trial or not (similar to a preliminary hearing). If the person is a flight risk, a threat to the victim or there is overwhelming evidence of a serious crime, the judge can keep the person in jail. This allows the process to remove money as an arbitrary factor of whether someone is set free or not, regardless of the actual facts of the case. It will be interesting to keep an eye on whether other states make a similar move. |
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