Earlier this year New York passed legislation that ended cash bail for defendants charged with misdemeanors or nonviolent crimes. Cash bail is the system where after you are arrested you have to post a cash bond in order to not stay in jail until your trial or you make a plea deal.

This has at least two negative effects: it is discriminatory against and creates needless hardship for low income people who can't afford to post bail and it creates an incentive for people to make a plea deal to avoid jail time. To me, given modern technology, bail seems obsolete - it is quite easy to find people nowadays, even if they go to another city. New York City already uses less bail than most cities (only 23% of NYC defendants have to post bail after arrest compared to a national average of 45-50%) and has a higher than average return-to-court rate of 86%, compared to a national average of 75%. Jail is also expensive - the average cost per year to jail someone at NYC's Rikers Island is $118,693 (although the marginal cost is significantly lower).

Reforming or getting rid of the cash bail system seems like a good idea generally. I'm curious if anyone here opposes this and their reasons if so.

I think the presumption of innocence mostly applies to people not having to prove they’re innocent and not preventing them from preparing an adequate defense. But once arrested and charged the likelihood that they actually are innocent diminishes quite a lot and they are provided with some level of legal representation. So while not assuming they’re guilty, I think a judge has some grounds to believe they probably are guilty and act, or at least have some wiggle room to act, accordingly. For example, if the defendant is a repetitive car thief who will likely get a substantial prison sentence if convicted and steal more cars if he’s let out, I think the judge should have enough discretion to balance the rights of the defendant against the good of society to prevent him from either fleeing or continuing to steal cars until he gets caught again.

Getting rid of cash bail doesn't mean letting all defendants out of jail. It means not predicating doing so on the basis of how much money they can put up to do so. If a judge thinks someone is a flight risk or likely to commit another crime before sentencing, they can do the equivalent of denying bail and keep them in jail.

I get it doesn’t mean letting everyone out. I’m just assuming with defendants the judges believe pose a flight or re-offend risk that they’ll set a high bail knowing it’s beyond their reach. So I guess getting rid of bail would force the judge into a binary. But that’s not going to help keep the poor out of jail as much as keep more affluent defendants in, or so it seems to me.

As to your point about saving money, again, I think judges have an idea how much time the defendant will get and that they’ll get credit for time sitting in jail awaiting sentencing, which is likely factored into their decision as well. So the main benefit I see is that affluent defendants are treated the same as poor ones, as opposed to lifting the poor up to the same level of treatment as the more affluent defendants.

So while I'm not opposed to getting rid of bail, I don't see poor defendants really benefiting at all. In other words, get rid of it because it isn't doing anything that wouldn't be done without it.

Seems reasonable at least until data shows that folks fail to show up for future hearings.

The enforcement of posting a bond may actually help some people stay out of getting themselves into more trouble as it may focus the mind and help them take seriously the judicial process.

It would be a tragedy to have a situation where folks go from merely having a misdemeanor charge to having a bench warrant because they didn't take the process seriously.

Generally speaking bail is a lot less them what a cheap hotel would cost, so it is really the criminal justice system that is getting ripped off here.

I suggest we just tie some fishing line around their ankle and just reel them in when the trial starts.

But this is why I think this is unjust. Of course defendants will just plead guilty after they've already served the time. What's the point of contesting a charge if it means you have to stay in jail longer and you are (usually) just putting yourself at risk of a more serious charge?

Here's a real case an attorney acquaintance that works for Brooklyn Defenders provided me. Two men get in a bar fight and are both arrested. One can afford a private attorney, and so bail is set within a few hours at $10k, which he pays and his attorney asks the judge for 6 months to prepare a defense.

The other guy uses a public defender and so doesn't get bail set for 2 days (illegal, but whatever), but he can't afford it so he stays in jail. After 3 weeks in jail, he is offered a plea of misdemeanor assault for time served or to go to trial for a charge of felony assault with a potential penalty of 1.5 years. Of course, he takes the plea bargain - and so the other man's lawyer asks his judge to dismiss his case since the other defendant pleaded guilty to assault, which he does.

That isn't justice. The poorer defendant has no real chance to plead his case before the law, rather his punishment is just part of the system. If the idea is that a judge setting bail is making an implicit ruling on the case, then the defendant should be allowed to present a defense that they are innocent.

I think you are underestimating the harm that being in jail can cause poor people. In the case above, the defendant lost his job and his house (he used public housing and given the misdemeanor no longer qualified for it). The state has to do more to justify locking people up in jail if that is their de facto punishment.

Agree that if this would be a bad policy change if this was the result.

To add some context. I don’t know how it works in NYC. With that stated I have gotten people out of jail a few times. I got a bail bondsman and had to fork over a percentage of the bail, sign a contract indicating that if the client didn’t show up client was on the hook for the whole bail amount.

Bail can be pretty high for misdemeanors as even 10% of the bail amount is a financial burden

Additionally, I think in all jurisdictions in the US, the judge can reduce bail requirements, even so far as only requiring personal recognizance. Perhaps the OP is a solution in search of a problem?

The problem I'm claiming is clear: many defendants are in jail unjustly because they can't afford to post bail. I'm claiming this is unjust because it is unfair to poor people who can't afford to post bail and also that that it is unjust because it frontloads the penalty for a crime before conviction and so creates a strong incentive for people to give up their right to a trial by jury.

As the article I linked showed, NYC already has a higher than average rate of both releasing defendants without requiring bail and a return-to-court rate. This suggests to me that we can go further and see if getting rid of cash bail completely, at least for lower level crimes, can work. In short, there's a potential cost in lowering people's incentive to show up to court, but the benefit of not jailing innocent people or so strongly incentivizing people to give up their rights seems worth this potential cost

Yeah, I see your point now. With your example, I’m thinking a fair punishment for a bar fight would be a fine, community service or at worst some weekends in jail. If it were me, that’s the outcome I’d expect, irrespective of the maximum penalties I could face. The way I see it, a couple of the main problems with the criminal justice system are mandatory sentencing and prosecutors overcharging for leverage. So I can see how eliminating bail could help reduce those abuses in a roundabout way. gh

I think NYC was ground zero for the Bail Project, where private funding paid people's bail to get them out of jail after arrest and before trial.

We have the 8th amendment and legal precedents regarding it. Appropriate bail policy seems to me to be a jurisdictional issue to me as long as the policy doesn’t run afoul of the 8th amendment.