The Cash Bail System: Does It Adversely Affect Someone’s Right To Bail?

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.

When you are accused of a crime and have been arrested, you have the right to bail. Bail is putting money up to ensure that you will return to face the judicial system, and whether  you are guilty or innocent will be decided upon by a jury of your peers. The bail system was created so that those who are innocent of a crime aren’t held in prison awaiting trial. When there were more people accused of crimes than the jury system had time to hear, the bail system was a reprieve that allowed people to be released from jail to await their place in line for a fair trial.

It’s a great idea in theory, but the problem is that when you have bail set, not everyone has the money to post it. It makes sense that the justice system doesn’t want someone who is guilty, to have free access to flee and never face prosecution, but the idea of bail is from a perfect world where everyone has the means and disposable income to post money. It isn’t fair at all — even if you can borrow money to gain your freedom and you have every intention to repay it, the cash system provides an unfair advantage to those who are less fortunate in society.


The American justice system was based on the belief that everyone is presumed innocent until proven guilty. The societal system is based on the notion that we are all created equal, but the bail system does anything but promote equality. In fact, it is those who are the less advantaged in society who fail at the hands of a “cash” bail system. Those who have the means are always going to prevail, while those who need to get cash on hand will always remain in custody due to lack of funds, whether they are guilty or not. What is fair about that?


To defend the bail system, bail money is set according to the severity of a crime and how dangerous it is to let someone out of authority’s control if they are a danger to themselves or someone else. The problem is that socioeconomics have nothing to do with actual threat, and those who are arrested and completely innocent must depend on their own financial situation to gain not just their legal counsel, but their freedom.


Put aside the entire idea of finding competent legal representation without resources; to be able to find your way to freedom without any cash is nearly impossible. When the average wait time for a trial can be months away, many spend their time behind bars due to charges that they are innocent of, simply because they don’t have the cash to pay for their freedom.


So what if someone was allowed to put a credit card up for bail?


There are many problems that come from allowing a credit card for bail money. If you allow a credit card to be used for bail, it is like giving two risks. Those who are guilty of a crime are probably not that concerned about forfeiting their money on a credit card. If they are a criminal, the prospect of not paying their credit card is not a concern. So that simultaneously puts the public and the justice system in danger.


In the same respect, just because you weren’t born into privilege, have the credit to get yourself our of a jam, or a family or close friend to bail you out, that doesn’t mean that you should spend months behind bars. It is a tough call to make. Many legal scholars are trying to find a way to keep violent offenders behind bars so that they aren’t a danger to society, but not to keep those without money at a disadvantage to destroy all they have, just because they don’t have the disposable income to pay their way out of jail awaiting a trial.


It’s a hard line to walk, and there needs to be some overhaul of the “cash system” of bail. Bail is a necessity to ensure that criminals don’t walk free while awaiting trial, but it shouldn’t be a tool to separate out those who aren’t capable of putting up cash from those who are. That simply isn’t what the justice system is about, which is fairness and equality.

Hugh Howerton