last breaths from behind bars.
He was left to die from medical distress because
he was unable to purchase his freedom; he was unable to post bail. Time has pro-
gressed since 1866, but the criminal justice system’s use of bail as a barrier to jus-
tice for Black individuals has not. Today, as during antebellum times, the Black
community still lacks meaningful access to bail and thus freedom.
Bail is the “temporary release of a person awaiting trial for a crime.”
Typically, a defendant posts bail by pledging a personal assurance or a property
guarantee “to a court to persuade it to release the accused on the understanding
that [the defendant] will return for trial or forfeit the money.”
At common law, bail amounts were set as to not “render the privilege useless
to the poor”
and the money was paid only if the defendant failed to appear.
This system was grounded in the principles of due process and the presumption
of innocence, which “guarantee[d] that a person will not be punished or lose their
liberty before they face a trial.”
Only the most dangerous defendants were
forced to remain incarcerated.
Under this design, poor white people were fre-
quently released without any condition of money bail.
The modern for-proﬁt bail system differs from the common law antecedent. In
postbellum America, bail evolved into a racialized, wealth-based, for-proﬁt sys-
In a for-proﬁt bail system, bail must be paid upfront.
This forces defend-
ants who cannot afford the court-appointed bail amount to choose between two
evils—utilizing a commercial bondsman
or remaining in jail until their trial
Both options cripple the defendant’s ability to navigate the
9. See id.
10. SHIMA BARADARAN BAUGHMAN, THE BAIL BOOK: A COMPREHENSIVE LOOK AT BAIL IN
AMERICA’S CRIMINAL JUSTICE SYSTEM 1 (2018).
11. Id. at 2.
12. EDWARD LIVINGSTON, A SYSTEM OF PENAL LAW FOR THE STATE OF LOUISIANA 510
(Philadelphia, James Kay, Jun. & Brother 1833) (“When bail is given, the prisoner must be discharged
without extracting from him the payment of any fees.”).
13. See LE
´ON DIGARD & ELIZABETH SWAVOLA, VERA INST. OF JUST., JUSTICE DENIED: THE
HARMFUL AND LASTING EFFECTS OF PRETRIAL DETENTION 1 (2019), https://www.vera.org/downloads/
14. BAUGHMAN, supra note 10, at 3.
15. See id. Originally, the First Congress provided bail to all defendants besides those accused of
capital offenses. Id.
16. See DANIELS, JR. ET AL., supra note 3, at 2.
17. See, e.g., Kellen Funk, The Present Crisis in American Bail, 128 YALE L.J.F. 1098, 1119 (2019);
DIGARD & SWAVOLA, supra note 13. This transition has been ever quicker in recent years. See PATRICK
LIU, RYAN NUNN & JAY SHAMBAUGH, THE HAMILTON PROJECT, THE ECONOMICS OF BAIL AND
PRETRIAL DETENTION 5 (2018), https://www.hamiltonproject.org/assets/ﬁles/BailFineReform_EA_
18. See, e.g., DIGARD & SWAVOLA, supra note 13.
19. This Note frequently uses the term “bondsman” (and “bondsmen”) as a term of art to reference an
individual who engages in commercial bond services. It is not a gendered term as both men and women
can be a bondsman.
20. See, e.g., DIGARD & SWAVOLA, supra note 13; Stephanie Wykstra, Bail Reform, Which Could
Save Millions of Unconvicted People from Jail, Explained, VOX (Oct. 17, 2018, 7:30 AM), https://www.
vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice- inequality [https://perma.
cc/NMJ2-4HUL]. If a defendant fails to show up for trial, they forfeit the bond; but it will be returned to
2021] WHEN BONDS TURN TO BADGES 405