There Are Alternatives To The Money Bail System The Justice Department Says Is Unconstitutional

This has been a good week in terms of the country taking baby steps toward reforming the criminal justice system. By filing a document in the state of Georgia last Thursday, the Justice Department said money bail is unconstitutional, and it is seriously about time the federal agency took notice that so many people (and their families) are being destroyed by fixed bail amounts. There are actually other options besides charging money to get out of jail before trial.

The government filed the document in a federal appeals court in response to an ongoing case in Georgia where a man, Maurice Walker, was held for six days in jail because he couldn’t make a fixed $160 bail for the misdemeanor of being a pedestrian under the influence. If you’re broke and have no cash, a fixed bail of any sum basically means you’re locked up while awaiting trial, which pretty much goes against the whole “innocent until proven guilty” thing our justice system is built upon.

“Fixed bail schedules that allow for the pretrial release of only those who can pay without accounting for the ability to pay unlawfully discriminate based on indigence,” the Justice Department wrote in the brief. It concluded, as a sort of solution, that courts need to also consider “alternative methods of assuring appearance at trial.”

Because there are other ways, besides money bail, to ensure people return to court. Advocates who want to get rid of money bail suggest GPS monitors, pre-trial follow ups (which would be similar to probation), or unsecured bonds, which means the accused doesn’t have to pay up front, but if they don’t show up for court they have to pony up. There are lots of states — mainly conservative ones like Kentucky — that use these alternatives when necessary. It makes sense if you think about it: keeping people in jail costs a lot of taxpayer money and Republicans hate spending money on others. These other methods have been enough incentive, in many cases, to ensure an accused person’s appearance at trial.

Bail is actually pretty complicated. Technically, it’s a means to ensure that a person convicted of a crime returns to court after being arrested. If one pays bail directly to a court and is proven innocent, they get their bail money back. But most people take out a bail bond for a percentage of the total they owe, because sometimes bail is a hell of a lot more than $160.

A bondsman loans the person cash to get out of jail quickly, but then that person has to pay it back at an interest rate in installments, just like any other kind of loan, and it’s not guaranteed they’ll get it back, ever. Someone can pay just 10 percent of their bail to be released, but 10 percent of, say $250,000, is a lot of money to come up with on the fly.

Making people pay for freedom is tricky. Many in the system see bail not just as a way to ensure a return to court, but also a way to keep dangerous offenders off the streets, as letting an abusive partner with a history of violence out on a low bail doesn’t sound great. It means judges have to do more work when they’re sentencing people and set fair amounts. As it stands now, the bail system isn’t working like it should.

Essentially, the Justice Department is saying it’s frivolous to set a high bail for someone caught being drunk in the street, with a small stash of weed, or simply protesting. In Baltimore, according to The New York Times, a protestor with a history of drug possession, but no violent crimes, was given a $250,000 bail.

There are tons of horror stories about how high bail amounts hurt people — if they can’t pay and have to stay in jail, they can lose their jobs or can’t take their kids to school. If they do manage to come up with the money, they’re stuck paying it back and end up more in debt. It’s a really vicious cycle that disproportionately affects the poor.