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Is the bias in the cash bail system sufficient enough to end it?

On Behalf of | Nov 29, 2022 | Criminal Defense

When someone is arrested in Ohio, the judge could charge them a collateral fee known as a bond. The judge will set a bond to give the accused an opportunity to await their court date outside of jail. If a bond is set, but the pretrial detainee cannot pay it, he must wait for his or her court date behind bars. Tens of thousands of detainees fall into this category and sometimes sit in jail for days, weeks or even months and sometimes for a relatively small bond.

Is being poor a crime?

While there are many problems that opponents of cash bail bonds would contend with, three of the most compelling are:

  1. Bond is not an equal remedy for all. To the degree that all cannot pay their bond nor borrow from family or a bail bond company, this system only serves those who can afford to pay. The majority of people who fit into the can’t-pay category are often people from low-income communities of color. This includes those with first offenses and non-violent misdemeanor charges.
  2. When pretrial detainees can’t bond out, they remain in jail with a presumption of innocence. As is accorded to all who are arrested, each is innocent until proven guilty. Prior to that moment, they are charged with a crime. The consequences of their detention can be crippling. Because they can remain in jail for months awaiting trial, some lose jobs, housing and custody of their children.
  3. The idea behind issuing a bond is that there is a better chance that the detained will return for his court date if the possibility of losing money is on the table. The problem with this thought pattern is that it doesn’t hold water. Research shows that those without bonds return for their court date at nearly the same rate as do those who bonded out of jail.

Is there a resolve to resolve the bias?

Given the inherent biases and complexities in the cash bail bond system, the issue is being addressed in several states. Outcomes include a ban on cash bail bonds in Illinois. And, the less popular option of allowing judges more leeway to release pretrial detainees on their own personal recognizance. Although the new Illinois law is scheduled to roll out in 2023, there are already plaintiffs in court to protect the lucrative cash bail bond system with all of its biases.