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Is the U.S. Bail System Fair?

The founding principle of the U.S. justice system is fairness, right? Well, maybe not when it comes to the U.S. bail system. What do you think? Is America’s bail system fair?

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In the U.S., right now, there are more than 450,000 people accused of a crime but not yet convicted of anything, sitting in jail cells as they wait for their trials. But, a LARGE portion of them remain behind bars simply because they can’t pay their bail. Critics think it creates a two-tiered justice system, where the rich get to go home while the poor have to stay behind bars. Those in favor of keeping bail argue that it’s effective at keeping potential criminals off the street.

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* What is bail? *

Bail is when you pay money to get out of jail while you wait for your trial.

* How does the U.S. bail system work? *

There’s no national bail system, but, in general, this is how it works. If you get arrested, a judge takes a look at your charge and has to make a decision about what to do with you until your court date. The judge has a few different options. Option 1 — you’re released on your own recognizance, which means you simply promise to return to court. That can happen if it’s a low-level offense and there’s no prior criminal history. Option 2 — the judge makes you stay in jail until your court hearing. That’s actually pretty rare and is really only used for people who are considered a danger to society. Option 3 — the judge sets bail. If you can pay it, you’re let out of jail, and if you show up to your trial, you get that money back. The idea is that you’re more likely to return if you have to cough up some cash.

* What are the arguments against bail? *

Critics of bail believe it’s essentially buying your way out of jail, which is obviously way easier for a rich person than a poor person. Therefore, the argument goes, it’s inherently unfair by disproportionately hurting the poor and minorities.

* What are the arguments for keeping bail the way it is? *

Even with all its faults, some research shows that bail is effective at getting people to attend their court hearings. It’s also a free service, meaning state and local governments and the individual taxpayers don’t have to pay for an alternative system.


Jail Inmates in 2016 via BJS

New York City Criminal Justice Agency Annual Report 2015

A Decade of Bail Research in New York City

Pretrial Release of Felony Defendants in State Courts via BJS

Vox Explainer on Bail

The History of Cash Bail via The Heritage Foundation

ACLU against California Bail Reform Bill

The Bail Trap via New York Times Magazine

Bail Reform and Risk Assessment via Harvard Law Review

Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing

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About KQED
KQED, an NPR and PBS affiliate in San Francisco, CA, serves Northern California and beyond with a public-supported alternative to commercial TV, Radio, and web media. Funding for Above the Noise is provided in part by the Corporation for Public Broadcasting, Silver Giving Foundation, Stuart Foundation, and William and Flora Hewlett Foundation.