How the US' Cash Bail System Discriminates Against the Poor

 by Ben Courdavault

The United States of America is one of only 2 countries to have implemented the commercial bail system, whereby a defendant (a person who has been arrested) can pay a sum of money in order to be released from custody until their court date.  This money is then returned to the defendant at the end of the trial, regardless of whether they are found guilty or innocent. The cash bail system was designed to allow someone charged with a crime to be free until the date of their trial, whilst also ensuring they would turn up on the day of their court hearing. In the USA, $80 billion a year is spent on keeping prisoners in prison, so the system of cash bail ensured the USA didn’t have to spend more money on keeping people in prison by offering them an alternative. I will be discussing the major problems with this cash bail system for the poor, and how this prevents justice in the USA from being carried out effectively

One major problem with the USA cash bail system is that often, poorer people who have been asked to pay a very high sum of money for bail would rather plead guilty than have to endure the months in prison whilst waiting for their trial to begin. In one case, a man was arrested who worked nights and watched his children while his wife worked during the day. If he stayed detained in prison before trial, he would have lost his job and wouldn’t have been able to care for his children. This pressured him into pleading guilty, even though he was told that if he waited for trial, he would have likely been found not guilty. This is just one example of how the bail system preys on the poor; justice is not being carried out effectively as innocent people would rather plead guilty than have to spend months, possibly even longer in jail.

The poor are often placed in prison, where conditions are below par. 95% of these people have committed small non violent offences, such as theft or possession of drugs. They are still ‘legally presumed innocent’ however they have to wait in prison, often for months, until their trial date arrives. Studies have shown that prisons have hugely detrimental psychological, physical and emotional impacts on the people who have to endure them. And this isn't helped by excessive overcrowding in US prisons.The US jail population has tripled in the past 30 years and a huge reason for this over 60% of the prison population is people who are on remand due to their inability to pay bail. The median bail for felonies in the US is about $10,000; surely US courts can’t expect a poor person to afford this? 

Being detained pretrial for inability to pay bail often leads to the people losing employment and income that were vital for them. This then has other effects, like losing housing and ending up on the street, which poses a huge problem because in virtually every state in the USA, it is illegal to be homeless. In some states like Florida, people experiencing homelessness are prohibited from sleeping in a car. Recently in 2022, the state of Missouri signed a bill banning sleeping on state-owned spaces all across Missouri. Failure to pay the cash bail effectively creates an endless cycle for homelessness for many people; they are released from prison when their trial has finished, however they have lost their income, their job, their house. They end up on the street and are put back in jail only to have the cycle repeated again. This just isn’t the case for the rich; they are released back into the community and given time to prepare for their trial and consult with their lawyer. They are still able to maintain their job and gain a source of income.

Consider this; 2 people could have committed the same offence, for example drug trafficking, and have each been given a bail of $50,000. However the difference between both of them is that one earns 6 figures a year while the other earns less than $15,000 a year. The wealthier person would be able to pay bail, and be released whilst they wait for their trial, which could take months. They would likely have paid for a lawyer and could consult with them anytime to come up with a strategy to win the case. They would likely still be able to keep their job if they’re employer agrees and they would still be earning an income. The poorer person would be forced to wait in prison, likely for months, and they would be unable to care for their children and earn an income. A public defender would be assigned to them, however, this public defender would likely have several cases going on at once so wouldn’t be able to focus entirely on one case, often leading them to miss crucial details while trying to defend the person charged with an offence. The 2 people have been charged with the same offence, however when it comes to the court hearing, a ‘not guilty’ verdict is much more likely for the richer person who has been able to pay cash bail versus the poor. This is just one example of how the bail system puts the rich at a huge advantage compared to the poor; they are not treated the same and the outcomes are vastly different for those who are rich compared to those who are poor.

There is no need for 60% of the prison population in the US to be made up of people who don’t have the money to afford bail. There are so many alternatives to cash bail, such as electronic monitoring, where a person’s location is always monitored. This would prevent them from trying to leave before the date of the trial, and is much more acceptable than locking a person up in jail for failure to pay cash bail. As of September 18th 2023, Illinois was the first state to entirely eliminate using the cash bail, and other states like New York and New Jersey have laws very closely related  to no cash bail. However, for the vast majority of US states, cash bail is still operating, and the people who feel its impacts are the poorest in society.