A discussion on how bail works in the US, why people are donating to bail funds now, issues with cash bail, and support for ending it.

What is bail?

Many jurisdictions in the US have cash bail policies. People accused of certain crimes will be required to pay bail in order to return home and await their trial. If they cannot pay bail, they will be jailed until their trial.

Many jurisdictions set a standard bail amount, but judges typically have broad discretion to raise or lower it. This often leads to racially discriminatory bail amounts (see below for more).

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Why donate to bail funds now?

• To bail out protestors: Right now, many people are sharing bail funds to bail out protestors in cities across the US. Many protestors are peaceful and are exercising their First Amendment rights for peaceful assembly and speech.
  • The Washington Post reported that, over the weekend of May 30–31, police arrested about 4,100 people across the US.
  • The Los Angeles Times reported on June 2 that nearly 2,500 protestors have been taken into custody.

<aside> 📖 A brief history lesson — Martin Luther King Jr. wrote his famous 'Letter from Birmingham Jail' after he was jailed for peaceful protest. Walther Reuther, then president of the United Auto Workers union, then arranged $160,000 to bail out MLK Jr. and other protestors. (Hoover Institution via Wikipedia)

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An additional reason to bail out protestors right now:

• To protect people from COVID-19 while in prison: Prisons and jails are overcrowded and many are dealing with enormous coronavirus outbreaks. For more on this, read:

  • "Prisons are 'in no way equipped' to deal with COVID-19", The Lancet, 2 May 2020.

    According to the New York City Board of Correction, there are currently 378 cases of COVID-19 among inmates in the city jails, equating to an infection rate of around 10%. But this does not include those who contracted the virus in custody and have since been released or transferred, or have died. Hundreds of cases have been registered among prison and jail employees, who can obtain testing far more easily than prisoners, including almost 1000 in New York City alone.

  • "'People are sick all around me': inside the coronavirus catastrophe in California prisons", The Guardian, 20 May 2020.

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What's wrong with bail in general?

The intention of cash bail systems is to incentivize people to attend their trials, where their bail money will be returned.

However, there are a number of issues with cash bail systems:

• Bail doesn't actually improve the chances people show up to their trials. (Harvard Law School)

  • ‘A working group in Santa Clara County found "that most defendants who are released from custody pending trial will appear for their court dates without any financial incentive, and that many of those who miss a court appearance do so for mundane reasons such as lack of reliable transportation, illness, or inability to leave work or find childcare, rather than out of a desire to escape justice."'
  • 'Washington D.C. releases 94% of defendants pretrial, and 90% of them make their court dates.'

• Whether bail is imposed, and the amount of bail, is often racially biased. (Harvard Law School)

  Judges overpredict the risk of Black defendants committing crimes on pretrial release and underpredict the risk of white defendants committing crimes on pretrial release. Accordingly, money bail is imposed more often on Black defendants than white defendants, and Black defendants receive higher bail amounts than white defendants.

• Leads to disproportionately jailing the poor.

  The cash bail system criminalizes poverty, as people who are unable to afford bail are detained while they await trial for weeks or even months. (Center for American Progress)

  • "In New York City, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail…only 15 percent of defendants are able to come up with the money to avoid jail.” (NYT)