SHOULD BAIL BE ELIMINATED?

• Author: Stoffers, Carl
• Position: NATIONAL

The bail system is under fire from critics who say it's unfair to the poor and should be scrapped. But many in law enforcement say that's a bad idea.

When Maranda ODonnell, a 22-year-old single mother, was arrested in May 2016 in Houston, Texas, for driving with an expired license, the judge set her bail at $2,500. ODonnell, who was earning close to minimum wage as a waitress, couldn't afford to pay, so she spent three days in jail. She missed time at work, and her mother had to care for her 4-year-old daughter.

The same day ODonnell was pulled over, 37-year-old David Dorsey was arrested by Houston police and charged with the more serious crime of felony burglary. Two courtrooms over from ODonnell, Dorsey's bail was set at $30,000, which he quickly posted, leaving jail the following morning.

The contrast between ODonnell's and Dorsey's cases isn't uncommon. On any given day, there are approximately 450,000 people being held in U.S. jails awaiting trial. Those who can afford to post bail are released, while poorer suspects often spend days, weeks, or months behind bars as their cases work their way through the courts.

America's bail system, which dates to the nation's founding, is meant to ensure that suspects who are let out of jail don't flee while their cases are being decided. Those who aren't considered dangerous or a flight risk are given the option to post bail, which is paid to the court. As long as the suspect cooperates in the legal proceeding, the money is returned when the case concludes.

But critics say the system is inherently unfair to low-income people, and some states are now moving to reform it or doing away with cash bail entirely.

"The bail system determines who is free and who is in a cage based solely on access to money," says Alec Karakatsanis, a civil rights attorney who has sued several states and cities over their bail policies. "It's about who's rich and who's poor."

The Eighth Amendment

The idea of bail has its roots in medieval England, where sheriffs used it to prevent criminal suspects from running off during the months-long wait for a judge to visit their villages. There have always been concerns about the fairness of bail. In the U.S., the Framers included a protection against "excessive bail" in the Eighth Amendment to the Constitution, borrowing directly from the English Bill of Rights.

Until about 40 years ago, bail in the United States was used almost exclusively as collateral to ensure defendants came to...