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Oct 18, 2023

The story of bail is one that most heavily impacts poor individuals. Consider these three bail scenarios. James, a teenager, was accused of stealing a bus pass. After police arrested him, the court set a $1,500 bail that neither he nor his family could afford. He remained in jail until he could negotiate a plea with the prosecutor. Another teen, Kenny, was charged with receiving stolen property. The prosecution suggested her bail be set at $150, but the court set bail at $300. Kenny spent five days in jail awaiting trial since she did not have the money to be released.1 A homeless man, Leslie Chew, who was living out of his car, was arrested after he walked into a convenience store and took four blankets to keep him warm on a cold night. Chew was arrested for theft and his bail was set at $3,500. A bail bondsman offered to cover it for $350, but Chew did not have enough even for that. Chew was in jail pending trial for eight months, costing Lubbock, Texas, taxpayers $9,210. Chew took a plea deal and pled guilty to felony theft.

In contrast to these bail scenarios, consider three other very different ones. A prominent foreign diplomat is released relatively quickly on bail and remained on house arrest after allegedly violently sexually assaulting a hotel maid. A wealthy husband and wife charged with brutally assaulting - including starving, beating, and torturing - two young maids are allowed their freedom on bail because they secure private bail guards. And finally, a well-known mob boss is released on $10 million bail, with an electronic bracelet, and remains in his extravagant mansion pending trial. These six real-world examples demonstrate that the inequities of bail are real. Poor defendants, who have committed minor, nonviolent crimes, are held in jail before trial while rich defendants charged with serious and sometimes violent crimes are released pending trial. Bail is not just a matter of abstract criminal justice policy, but practice with real effects on real people. Indeed, these accounts demonstrate that the story of bail is one of poverty, inequality, and haste. It is also a tale of important constitutional rights lost and judicial discretion misused. And importantly, bail is the single most preventable cause of mass incarceration in America.

Source: Baughman, Shima B., The Bail Book: A Comprehensive Look at Bail in America`s Criminal Justice System - Introduction, Cambridge University Press (2017)

Optimal Bail: Using Constitutional and Empirical Tools to Reform America`s Bail System

Optimal bail focuses on correct constitutional principles to govern bail as well as a focus on releasing as many defendants safely while cutting incarceration costs. It identifies three principles that federal and state courts and legislatures should apply to ensure that all defendants have this right and that the public remains safe.

Principles of Optimal Bail:

  1. Restraints of liberty should be limited to only what is necessary and only where there is a proper legal basis.
  2. There should be no pretrial determination of guilt without access to counsel and no bail hearing without counsel.
  3. A defendant`s pretrial release should not be contingent on wealth or ability to pay bail

Critical Thinking Questions:

In your discussion post answer the following questions:

  1. What benefits do you see in using the principles of optimal bail?
  2. Are you concerned people may be released and cause more harm?
  3. Or are you concerned that people are being incarcerated unnecessarily?
  4. Provide two meaningful peer feedback posts.

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