One of the most debated issues in criminal law these days is the bail system in our country. Almost all states are questioning the efficiency of their current bail systems. This is in response to criticism that the criminal justice system punishes the indigent and favors people who come from wealthy families.
For the most part, bail works the same way in almost every state. When someone is arrested for a crime, no matter how minor, they are arrested. If their crime is very minor and they have no active warrants, they may be released on their own recognizance.
For people with a criminal history or active warrants, in order to get out of jail, they need to post bail. For some people, this isn’t a problem. Either their family has the money to get them out or they can get bond posted by a bail bondsman.
But what happens to people who have no family? Indigent people have been known to sit in jail for weeks or even months for very minor crimes while other people, who committed dangerous crimes, are walking the streets.
How Does the Bail System Work?
When a defendant is arrested, they must post bail to get out. Judges are the ones to set bail, usually upon the recommendation of the county prosecutor. Since most people want to get out jail immediately (rather than wait days for a bail hearing) most counties have set specific bail amounts for each crime.
If you have the money to pay your set bail amount, you’ll be released within an hour or two of your arrest. If you don’t have enough to bail yourself out, you’ll have to wait for a bail hearing.
At your bail hearing, the judge will set bail or confirm the stated bail amount. You can request a lower amount if you want. Depending on the circumstances of your case, the judge will deny or approve your request.
If you don’t have enough to bail yourself out, you can sign a contract with a bail bondsman to post bond on your behalf. In order to do this, the bondsman will usually require a family member (with assets) to sign the contract as well.
If you don’t show up to court, your bail will be revoked. If this happens, the bondsman will expect you (and your family member) to pay him back the money he posted.
What Happens to Those People Who Can’t Pay Bail?
For most people, posting bail is inconvenient but not impossible. They may have to borrow from friends and family, but they won’t have to sit in jail interminably.
For people who have no money and no family, things work a little differently. They will sit in jail until their trial date. This could be weeks or even months. This means that, even for petty crimes, a person could sit in jail until his trial date.
Let’s consider an example. In New Jersey, bail for leaving the scene of an accident that resulted in death is anywhere from $15,000 to $35,000. You are allowed to post 10% of your bail to get out of jail. So someone who killed someone in a drunk driving accident and left the scene can get out of bail by paying as little as $1,500.
Now, in that same state, the bail for shoplifting is $500-$1,000. The court does allow you to pay 10% to get out of jail. So you would need at least $50 to get out.
The person who killed someone in an accident is from a prominent family. He has no problem paying $1,500 to get out of jail. The person who was caught shoplifting is homeless and has no family. He has no way of getting $50.
This means that someone who shoplifted a loaf of bread may stay in jail for months while someone who killed an innocent person walks free. Is that justice?
What is Bail Reform?
Over the last years, activists have been calling for bail reform in many states. They believe the system is unfair and favors the wealthy. They also argue that it is unfairly harsh on the indigent and homeless population.
In early 2017, New Jersey passed an act that did away with the cash bail system. Instead of requiring all defendants to pay bail to get out of jail, they have put a new system into place. This was after finding that the average defendant spent an average of one (1) year in jail awaiting trial.
Under the new system, each defendant will be evaluated on a risk scale. The court will look at the following factors:
· Criminal history
· Seriousness and nature of crime charged
· Flight risk
For most non-violent crimes, people will not be required to pay bail. The same is true for people who are not a flight risk and have no criminal history. If the court deems you a violent offender (or a flight risk) you will be required to stay in jail until trial. Some defendants will be allowed to wear an ankle monitor instead of staying in jail.
Under this new system, indigent defendants will not be forced to sit in jail for a year waiting for trial. The system also ensures that dangerous criminals will not walk the street regardless of how much money they have in the bank.
As With all Changes, Bail Reform is Not Without its Challenges
As with any other criminal justice issue, bail reform is not without its opponents. Some people claim that the new system forces people to either in jail or wear a monitor when two years ago, they could’ve walked free.
Others argue that the solution is faster trials – not the elimination of bail reform. It’s too early to say how the new system is working in New Jersey. However, they can confirm that the pre-trial prison population has been reduced by as much as 20%.
Every state is going to have to evaluate their own bail system on a case by case basis. There’s no telling if bail reform is here to stay. But it is proof that the system is ever changing and that fairness is possible in our criminal justice system.
If you or a family member have been charged with a crime, it’s important that you contact an experienced criminal defense attorney.