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According to this article there seem to be serious downsides to heavily usage of money (cash) bails (emphasis mine):

In effect, the cash bail system criminalizes poverty, as people who are unable to afford bail are detained while they await trial for weeks or even months. Cash bail perpetuates inequities in the justice system that are disproportionately felt by communities of color and those experiencing poverty.

Spending even a few days in jail can result in people losing their job, housing, and even custody of their children. Studies show that pretrial detention can actually increase a person’s likelihood of rearrest upon release, perpetuating an endless cycle of arrest and incarceration. What is more, the cash bail system often leads to the detention of people who do not pose a threat to public safety.

This PolitiFact article explains the uniqueness of US bailing system:

"only the U.S. and Philippines have a cash bail system that is dominated by commercial bail bondsmen." This makes a difference because a commercial bail industry has a financial stake in the system.

Money bails are also used in other countries, but it seems to be less systematic than in US or at least in a way that does not make it so unfavorable for the poor:

In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the suspect will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge.

I am wondering why does the US still use this type of bail system despite its apparent drawbacks?

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    It’s not cash bond that criminalizes poverty, it’s the existence of bail bondsmen, bond schedules and plea bargains that criminalize poverty. – jmoreno Nov 15 '20 at 23:32
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    Why do you believe the US sees the issues you've raised as "drawbacks"? Your final question is a loaded question because it presupposes that the US shares the same moral framework and social objectives that you do and that they've made this decision simply because they failed to consider it long enough to see these faults. It ignores the possibility that the law was designed this way to produce precisely the results you note. – J... Nov 16 '20 at 11:57
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    "despite its drawbacks" Could edit the question to be an actual question, instead of a forum to post assumptions? No matter how worthy the goal, it's a huge problem on this site when folks post "questions" such as "The [political party I favor] is obviously correct, why then do we have XYZ?" Regarding the first article posted (which happens to be in support the position), one can instantly google 1000s of articles which support the other side (the arguments for which are extremely obvious). Posting an article that happens to support "this side" is of no value. – Fattie Nov 16 '20 at 15:00
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    Stop pushing the socialist agenda that poverty causes crime. It is a disparaging to those who are poor and follow the law. I – paulj Nov 16 '20 at 20:55
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    @paulj I have to disagree. If, say, there are 3 persons on average who commit crimes per 1000 people for decently living and 5 such persons per 1000 people among poor, it might be reasonable to state that poverty causes crime, yet it doesn't say anything negative about 995 poor persons from that 1000 who follow the law. – val is still with Monica Nov 17 '20 at 10:04
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  • Bails are a big industry which lobbies legislators to protect their business model.
  • It is traditional, and there is widespread belief in American Exceptionalism -- a refusal to consider that the US might learn anything from other countries.
  • The US is unusual in the degree to which it disenfranchises convicted felons, and also to the degree in which it blackmails suspects into plea bargains, so people who run into the system can't vote against it any more.
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    I would assume that private prisons are also interested in keeping the bail bond system around as that means more prisoners for them to house when people can't get out on bail. – Joe W Nov 15 '20 at 17:05
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    Part of the American Exceptionalism piece is that the revered Bill of Rights in the U.S. specifically establishes a right to post a cash bail. Regardless of the legal limits of that right, it enshrines "bail" psychologically as a pro-defendant freedom, whatever the reality may be. – ohwilleke Nov 17 '20 at 3:05
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    @ohwilleke: That is not what the 8th Amendment says. It says that "excessive bail shall not be required," which is not the same thing as requiring that bail be offered at all. Bail is routinely denied to people whom the court views as a flight risk. Non-cash bail would also not violate it, because $0 is certainly not "excessive." Some states have actually abolished cash bail already. – Kevin Nov 17 '20 at 17:32
  • @Kevin My comment isn't about the legal reality (and I think the 8th Amendment does enshrine a right to pre-trial release either without bail or with a cash bail that is not excessive), it is about the perception and resulting political consequences of that perception. If the 8th Amendment didn't mention bail (and most state constitutions echo that, sometimes in slightly different wording), I doubt that cash bail would still be so common in the U.S. – ohwilleke Nov 17 '20 at 20:18
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    @ohwilleke: You said the Bill of Rigths "specifically establishes a right to post a cash bail." In your second comment, you said "I think the 8th Amendment does enshrine a right to pre-trial release." Both those statements are wholly incompatible with Supreme Court precedent (see e.g. United States v. Salerno). While I understand that there are political consequences to the 8th Amendment beyond its legal meaning, you are repeating a falsehood after being corrected on it. – Kevin Nov 17 '20 at 21:20
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I am wondering why does the US still use this type of bail system despite its drawbacks?

I think many cultural aspects of the different countries make this a more nuanced and difficult issue than it might seem to one side or another of the debate.

It must be said that the US is very much a capitalist country. As such it is focused on personal wealth (or monetary value if you prefer). The bail system reflects this. Rather than using the bail system to restrict (alleged) offenders, it sets a (mostly) monetary value on offender and the crime allegedly committed.

As it is presumed in a capitalist system that people are also focused on wealth retention, the presumption of such a system is that they will attach significance to any risk of loosing bail money.

The biggest flaw is that there is a system of bail bonding. This undermines the whole basis of risk of loss as a punishment, as skipping out on bail will typically affect other people more than the offender.

As noted on the relevant Wikipedia page the has been significant movement towards what is referred to in the US as pretrial supervision. That is to using using electronic tagging and e.g. house arrest or movement restriction orders to effectively limit the activities of accused offenders prior to trial.

In effect, the cash bail system criminalizes poverty, as people who are unable to afford bail are detained while they await trial for weeks or even months.

Playing Devil's advocate I would say that the logic behind this is to increase the desire to obey laws in the first place and to not risk offending. That said, even that interpretation leads to the problem that those with wealth can view the imposition of bail as an inconvenience and not as significant a risk as an "ordinary" person would experience. It also seems to fly in the face of innocent until proven guilty as potentially you suffer a great deal for being innocent.

Studies show that pretrial detention can actually increase a person’s likelihood of rearrest upon release

Again playing Devil's Advocate, it could be argued that the study might be showing that those most likely to be detained are correctly identified by this system as repeat offenders. Or to put it another way, the study could arguably be said to support the idea that those not getting bail are also those most likely to be repeat offenders and it's not a fault with the system, but a feature. I suspect the devil is in the detail here and the situation is more nuanced and more "a little from column A and a little from column B" than "A or B".

In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the suspect will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge.

Many people in the UK (and my own similar country Ireland) would be extremely unhappy with the lack of detention for bailable offenses. Even in the case of repeat offenders quite lax bail conditions are often set in these jurisdictions and offending while on bail is perceived as quite common. It is quite difficult to work out whether that public perception is fair or not (e.g. this parliamentary question answer in the UK does not really deep dive the figures). It is however clear that in the 2012 stats quoted some 121,000 offenses were committed by people on bail for other offenses that year. That's a significant number given the UK's population. Of the order of about 90% of crimes in the UK do not lead to prosecution and there are of the order of about 5 million crimes reported. This would suggest about 450,000 prosecutions of which the bailed offender's figure would all (if I understand this correctly) be part of, or about 25% of all prosecutions are for offenses committed on bail in the UK.

So while the US system may seem to punish people unfairly, if looked at in the light of UK crime stats, there could be an argument that the US system is doing its job. Again not taking sides here, just presenting the counter-argument for the US system.

Again I think the nuances of this are far more subtle in practice in all jurisdictions than bare headline stats might suggest. For example, a distinct difference between UK/Ireland and US law is the severity with which DUI and DWI offenses are treated. In the US this is treated as a much more serious offense (generally) than in the UK and Ireland, where they are (barring serious injuries or damage) treated as offenses that result mostly in driving bans and fines, even for repeat offenders. On the other hand the US attitude to "minor" gun offenses would be considered quite strange in the UK and Ireland. So a great cultural gap exists which the stats will hide in many cases between countries.

So a lot of cultural attitudes are at work in forming the US attitude to bail and it could be argued that for the US it does what it is supposed to (Devil's Advocate) and that e.g. the UK/Irish system which seem more "humane" are also more unfair to victims.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – CDJB Nov 17 '20 at 13:42
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According to "The Economics of Bail and Pretrial Detention" by Liu, Nunn and Shambaugh (https://www.hamiltonproject.org/assets/files/BailFineReform_EA_121818_6PM.pdf),

The primary purpose of bail is to ensure that defendants successfully show up to court when required. Beginning in the 1970s, the use of bail was expanded to address public safety concerns (Dabney, Page, and Topalli 2017). As mentioned above, commercial bonds tend to be associated with the highest court appearance rates, followed by cash bonds, which are in turn followed by nonfinancial release (Clipper, Morris, and Russell-Kaplan 2017; Helland and Tabarrok 2004). These relationships are consistent with the incentives of the bail bonds agents and defendants.

(emphasis added)

The cash bail system continues to be used (despite its flaws) because it works.

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  • Is that because the only people who can afford the cash bond are the ones who are most likely to appear? – user253751 Nov 16 '20 at 17:33
  • @user253751 Commercial bonds are not the same as cash bonds. Commercial bonds are those where a bondsman provides the cash for a bond to the court when the prisoner borrows it from the bondsman. – Joe Nov 16 '20 at 20:09
  • Does that study list the differences in appearance rates between the methods? If there was only a small difference in appearance rates between commercial bond and non-financial release that would make a difference. Also does it compare the difference in appearance rate based on crimes charged with? I would assume some crimes are more likely to have people show up for versus others. – Joe W Nov 16 '20 at 23:36
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    @JoeW I am admittedly not an expert on this topic. My literature search involved reading several papers, one of which (ncjrs.gov/pdffiles1/Digitization/32349NCJRS.pdf) did address your question with the caveats: it's from 1976, it's only Charlotte, it's not randomized. Even so, bondsman release was highest among methods. – Xerxes Nov 17 '20 at 14:08
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    @gerrit Bondsman release was highest among release methods. Obviously, there are many people who are not released at all. It depends on many factors. – Xerxes Nov 18 '20 at 13:46
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I heard a long time ago the system (getting a bail bondsman) had the following advantages:

  • You put in money, so you have a slight incentive to appear at the trial
  • Relatives co-signed the bondsman, so there was more incentive
  • the bondsman had a huge incentive for you to appear in court, so they will get a bounty hunter to track you down (story plot of 'the fall guy')

And I hear the bounty hunter system solved the problem that they were allowed to operate nation wide, so if you ran of to a different (US) state the police couldn't arrest you, but a bounty hunter was allowed to do so.

I don't know if this is still true.

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Bail doesn't introduce a bias of legal representation, i.e. more resources allocated to prosecution/defence.

European justice also criminalizes poverty: A rich person can afford a better team of lawyers, who find witnesses and evidence everywhere. If there is a robbery, criminal violence, corruption in EU nations, a defendant can have 20 times more legal funds than a plaintiff. That is the true reason for criminalizing poverty.

Reasonably, a defendant and a plaintiff should have the same lawyer budget, else the court is flawed.

If the US justice system for small crimes is corrupted by money, bail isn't a specific cause of bias. If "a reasonable doubt" actually worked in real life, so that evidence is not fabricated, the imprisoned party would never lose the bail money.

The true issue is why a reasonable doubt ideal doesn't work and why money guides law more than citizen issues.

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    Bringing up Europe may lead to an answer by analogy, but this is not such an answer. It's just a rant against money. – MSalters Nov 16 '20 at 8:00
  • @MSalters it's answers that bail doesn't introduce a bias of legal representation, whereas imbalance of legal representation is de-facto in most nations permitted by law between opposed legal parties. This question is popular because it uses the term "criminalizing poverty" so I answer that misconception, legal representation funding criminalizes poverty, not bail. – aliential Nov 16 '20 at 9:24
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    This answer is changing the subject. Yes, different people having different access to legal tools due to money is also a problem (which is by the way a lot less extreme in most European countries than in the US due to verdicts being made by professional judges instead of easily impressible lay-jurors), but it's not the problem this question is about. – Philipp Nov 16 '20 at 10:09
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    I believe they call this "whataboutism": when someone criticizes "your team", you say "ok but what about when the other team also did something bad?" – user253751 Nov 17 '20 at 14:01
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Allow me to reframe the problem, since I don't subscribe to propaganda.

I'm not convinced that a cash-bail system in and of itself is the problem.

The problem has several facets, but here are a few:

  1. A lack of suitable alternatives. There is no reason to change our methods from one faulty system to another faulty system. These other nations you talk about are not better, just different.

  2. Tradition. The fact is, that is how our system operates. Change is difficult even when it makes sense. Change for changes sake alone is not progress. To completely upend the system would be a shock and it would cause a confusing transitional period where injustices may indeed be greater, as bugs are hashed out. A change needs to be gradual and natural, and each step in that transition needs to be compatible with the previous system. This progress must be tested and verified to work. It's a slow process. It IS something being actively worked on. But just because there isn't overnight unverifiable "progress" imposed through authoritarianism does not mean change isn't happening.

  3. As you pointed out, we have a bail bond industry. For government to come in and undermine this industry, these companies, would be a level of government involvement in the economy not suitable for a capitalist nation. You can't just write legislation that destroys an industry overnight.

  4. It would be unfair and unjust to set different levels of bail for different people for the same crimes. The wealthy can afford to pay out of pocket. The bail bond industry, like the student loan industry, exists to give the people who can't afford to pay out of pocket an equal opportunity. No one is disenfranchised for not taking out a bail bond... that is their choice, because they know they are guilty and they know they won't be able to pay back their loans.

  5. And, coupled with (4), we being a capitalist nation, money is the driving force. You're not going to sway anyone with a slap on the wrist or a down vote on social media. This might be the UK way but it wont work. Cash bonds exist as an incentive that all citizens have a vested interest in.

  6. To the contrary of the Constitution, individuals are incarcerated prior to a guilty verdict, should one opt not to pay bail. That is admittedly a problem but it is the only one that I truly see with the system.

  7. My suggestion is simple... let everyone go free after arrest, but place a GPS tracker on their ankle, keep a watchful eye on them. Especially if a flight risk or a danger to witnesses, include proximity sensors to places and people they shouldn't be near, and be ready to swoop down on them with a lethal force. We can implement the GPS tracker on people who choose not to pay bail until we phase out bail entirely. Race is entirely not a factor. In this way, poor and rich are treated equally, there is no economically-based disparity. No one is incarcerated without trial, witnesses are protected, and the accused can live life getting their things sorted.

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    For point 4 there is precedent in Germany. Germany has "Tagessätze" (Day fines), which is the averaged income per day of a person (min 1€, max 30'000€) and lots of punishments are based on the day fine, not fixed amounts. Breaking the law and getting fined with e.g. 3 day fines can cost you between 3€ and 90'000€, depending on how much you earn. – Morfildur Nov 16 '20 at 7:05
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    For #4: Bail is not a punishment, it is a way to ensure that the accussed has an incentive to not try hiding from justice when the trial happens. So it is entirely reasonable to set different levels of bail: if $10.000 bail for a poor man means that he will lose his home if he attempts to flee, it is as effective than $1.000.000 bail for a rich man that will lose his McMansion if he attempts to flee. Or even more, since the rich man will probably still have money to get a decent place to live, even if it is not a mansion. – SJuan76 Nov 16 '20 at 8:11
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    #3 is odd: this industry only exists because the government created it, how can it not be involved? Along the same lines, does it mean that the government must continue to mandate car insurance or inspections of any kind irrespective of any policy priorities for the sake of not undermining an industry? – Relaxed Nov 16 '20 at 11:29
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    @SJuan76: The problem is that bails are often set high enough that the only way people can raise money for them is go use the services of a bail bondsman, whose fee is not refunded even if the accused shows up for trial and is acquitted. – supercat Nov 16 '20 at 13:39
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    @Relaxed it's a very common mindset among free market people -- that the free market is some naturally occurring thing we discovered (and therefor should not be interfered with by government) when in reality "free market capitalism" is an invention of government and its existence is the result of decisions and policies made by governments. – eps Nov 16 '20 at 15:46

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