Bail. Is it Unconstitutional?

At any given time 450,000 people are in jail because they cannot afford bail. We all know about celebrities having to post bail, but many people don’t know the purpose that bail serves. In a nut shell, the bail system is meant to allow non-violent offenders to stay home before their trial. When someone is arrested, they often have to post bail to ensure that they will show up to their court date. If they show up, all of their money is returned.

The problem with this system is many poor people are unable to make bail, which forces them to stay in pretrial detention. In her book, The Price of Freedom, Jamie Fellner maintains that “62 percent of the nation’s jail population consists of detainees awaiting trial.” Yes, that number includes violent offenders, but it shows the system isn’t working. Bail is supposed to deter people from fleeing. Instead it is forcing the poor to stay in jail. This can have drastic effects on the poor’s lives because they have few safety nets. They can lose their job, their children may have to move to a new school district, or their place in a homeless shelter can be lost. So many defendants plead guilty in order to stay home.

These factors are why bail violates the Constitution on two premises: the 8th and the 14th Amendments.

The 8th Amendment states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It could be interpreted that if a defendant is unable to afford bail, it is automatically an excessive fine. Which is unconstitutional. In Stack v. Boyle, the Supreme Court ruled that higher fines were constitutional as long as there was a reasoning behind it. But, without transparency in judge’s decisions it is extremely difficult to understand why bail is posted at certain amounts.

The 14th Amendment states that citizens will not be “deprived of life, liberty or property without due process of law.” Procedural due process is where everyone has the right to a fair process of a trial. However, defendants are taken away their rights if they cannot make bail, taking away their rights before due process. This is because you need to have a trial in order to have due process, which they have not gone through.

If bail is so unconstitutional, why did we adopt the system in the first place? The underlying idea is that this allows people to stay home while waiting for their trial and contribute to society. Plus their entire life doesn’t get disrupted based on a false charge. The problem is this isn’t happening.

But with Trump as the President Elect, what does it mean for bail reform? Nothing good. Since Trump is a businessman, the likelihood of him publicizing a sector is extremely unlikely. Since he wants to privatize social security, there is no reason he will make any move to move pretrial services away from the public sector.

However, bail laws and pretrial services can be done by the state or local governments. This means that bail reform can still occur in America. Contact your local and state officials. Make bail reform happen.

Watch my video for some interesting statistics!


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