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How Money Bail Hurts Our Judicial System

Posted by Seth Chazin | Jan 24, 2018 | 0 Comments

In 2010, Kalief Browder, a 16-year old African American, was arrested in New York for allegedly stealing a backpack. He spent three years on Rikers Island, enduring brutal solitary confinement, and awaited a trial that never took place. After the charges against him were dismissed, his mental health continued to deteriorate, and he took his own life.

The United States Constitution guarantees the right to a “speedy” trial, and the entirety of the judicial system is predicated on the notion that a suspect is innocent until proven guilty. These basic tenets of American democratic principles have been thoroughly derailed by the system of money bail.

In order for a defendant to be released before trial, he or she must pay an arbitrary bail amount. Money bail guarantees that an accused person's ability to go home is based on their financial status, not their flight risk or the severity of their alleged crime. Bail based on finance does not enhance public safety. It only benefits the for-profit bail industry.

In a recent Op-Ed for the New York Times, New York Governor Andrew Cuomo hammered the money bail system, noting that, “in New York City jails, where 86 percent of the population is black or Hispanic, 75% of inmates have not been convicted of a crime.” Governor Cuomo is putting a bail reform bill before the New York State Legislature which would ensure that those accused of misdemeanor or nonviolent felony offenses would be released pretrial without bail.

Last year, New Jersey ended its money bail practices, instead making release contingent upon an algorithm that assesses a defendant's flight risk. According to the New Jersey State Police, the state's jail population has decreased by 15.8 percent, while crime has decreased by 3.8 percent and violent crime by 12.4 percent.

A recent study from the Ralph J. Bunche Center for African American Studies at UCLA found that in Los Angeles the highest imposition of bail sums was exacted on communities with the most extreme rates of unemployment. Moreover, bail bond deposits mirrored existential racial inequality in the criminal justice system, with Latinx people paying $92 million, African Americans paying $41 million, and Caucasians paying $38 million between 2012 and 2016. During this period of time, 70% of money bail requirements could not be met by defendants, resulting in the sustained incarceration of 220,000 people before their arraignments. In 2016, the San Francisco City Attorney and Sheriff refused to defend money bail, questioning whether or not the existence of money bail violated the constitutional rights of the accused.

During the 2017 legislative cycle, California state legislators presented a proposal that would entail a sweeping overhaul of the money bail system, garnering support from Governor Jerry Brown and California Supreme Court Chief Justice Tani Cantil-Sakauye. The bill stalled due to aggressive lobbying from the bail bond industry, but a new proposal will likely be produced in early 2018.

Money bail guarantees neither public safety nor judicial fairness. Yet as criticisms mount against it, the possibility arises that our judicial system will focus on flight risk rather than financial status as a means of determining pretrial release.

To learn more about how bail is determined, please visit the FAQ page.

About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 25 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 30 years experience.

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