By Aaron Ginsburg
In recent weeks, there has been intense debate over the use of cash bail in America’s justice system. Advocates against it eventually won out, and New York has followed in the steps of California and New Jersey and has prohibited cash bail from being set for most misdemeanors and nonviolent felonies. But still, there are specific aspects of the laws that permit the use of traditional cash bail, such as violent criminal offenses.
Despite recent attention paid to high profile abusers of New York’s new system, cash bail needs to be completely abolished to prevent the unfair detainment of minority groups who cannot afford the price, and who are disproportionately targeted by the prison system.
Today in the United States, approximately 465,000 people are sitting in jails, not convicted of crimes, but simply waiting for their sentence because they cannot afford their bail. The majority of these detainees are members of minority communities and/or struggling economically. This is because they are unable to afford release while awaiting trial and are stuck in jail indefinitely. State court studies from the 1990s show that bail was set at much higher rates for black and Latinx people.
The American prison system is based on prejudice and the discriminant targeting of minorities—groups whose social and financial standing have been devastated by the decades-long “War on Crime.” This perpetual cycle of imprisonment has made the United States the leader in prison population globally, with 724 out of every 1,000,000 people being in prison. This has resulted in the current state of the prison system, where 21.2 percent of the total 2.3 million prisoners are un-sentenced. So much for innocent until proven guilty.
The legal function of bail is to ensure that those who can afford it will return for their trial after being released. Opponents of the reform believe it will lead to a higher number of people not coming back for their trial, letting potentially dangerous individuals run free and giving them the chance to commit more crimes. However, this concern is refuted by extensive data taken after New Jersey implemented its bail reform in 2017. According to the data, there has been a 40 percent drop in the number of pretrial detainees, as well as no spike in crime. On top of that, those who were released came back for their court dates at a clip no different from before. Fears that the removal of cash bail will lead to a spike in crime, it would seem, have proven unfounded.
It’s not like dangerous people don’t get out on cash bail under the current system, they just happened to be rich as well. Take the case of multimillionaire and convicted rapist Harvey Weinstein, who was allowed to live free while awaiting trial, not because he was not a flight risk (he was) and not because he wasn’t considered dangerous, but simply because he could pay the exit price.
Studies further show that prolonged detention before a trial can lead to an extension of the vicious cycle of economic instability and crime. Families of detained suspects are handicapped financially and, in many cases, are forced into further struggles, which ultimately prolongs generational problems in that family and their community as a whole.
While New York’s bail reform still needs tweaking and has not eliminated all of the socioeconomic unfairness, it is a step in the right direction. Despite fear-mongering and misconceptions, bail reform is essential to the greater goal of criminal justice reform. Cash bail, like much of that prison system, disproportionately affects minorities and poor communities. It punishes people not for having been proven guilty, they haven’t even received a trial yet, but because their bank accounts can’t meet the mark. To repair this, money needs to be taken out of the equation entirely and a priority be set on justice, and that means justice for all.