The Bill of Rights includes several Constitutional Amendments to prevent misconstruction or abuse of power by the government of the people. Some of these rights include:
Freedom of Religion, Speech and Press (Amendment 1)
Right to Bear Arms (Amendment 2)
Protection of Unreasonable Search and Seizure (Amendment 4)
Rights of Accused Persons in Criminal Cases (Amendment 6)
If any of the rights are infringed upon, there would uproar and chaos in the country.
But one of those Amendments is being infringed upon. The Eighth Amendment in the Bill of Rights.
Amendment 8: Excessive Bail, Fines, and Punishments Forbidden
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The United States Supreme Court v. Salerno held that preventative detention did not violate the due process clause of the Fifth Amendment or the excessive bail language of the Eighth Amendment.
When bail is granted, it should be sufficient to ensure the defendant appears for all required court appearances and to protect the public.
In the wave to reform the use of money bail, opponents of secured financial release would have us believe that only poor people, notably African Americans, are being held in jail and that they all have only been arrested for low level crimes.
An April 2019 report by the Bureau of Justice Statistics on county and city jail populations however, showed that in 2017, whites outnumbered African Americans held in jail by almost 50 percent.
The Pretrial Justice Institute, whose core mission is to eliminate financially secured bail, proudly highlights on its website the following statement:
No matter what you call it, requiring people to pay to stay out of jail before trial is unfair and unsafe, and wastes tax dollars.
Really? Does that include people that commit murder, rape, sexual assault, trafficking, crimes against children, kidnapping, robbery and other violent crimes too? In other words, just release everyone, no matter their crime or criminal history, and hope they come back to court and not commit future criminal acts?
Is that fair and safe for the victims of crime?
If society doesn’t have laws to discourage bad behavior, such behavior will continue – whether you are rich or poor, black or white. Communities won’t be safe as long as the criminal justice system enables bad behavior.
Cherise Fanno Burdeen, Chief Executive Officer the Pretrial Justice Institute, has equated the bail system to a “ransom,” where payment is demanded for release.
Let’s be clear about the bail industry.
Bail agents don’t set bail for individuals; the court does. Bail agents rarely arrest people; law enforcement does. If people wish to use the services of a bail agent to gain their freedom pending the outcome of their case, that is their decision. Bail agents force no one to use their services. People have to be responsible for their own choices. Much like auto or home insurance, individuals pay a fee to have coverage if something should happen. Bail agents charge a small non-refundable fee to cover their loses if the defendant fails to appear.
If the court wishes to release someone on their own recognizance or with conditions so that individuals as PJI attests, “Might not lose a job, which, in turn, could mean rent won’t get paid, families won’t be fed and so on,” they can do so if circumstances warrant such release. That is called judicial discretion. Many courts also allow defendants to post ten percent of their bond to the court directly for release. And fines and fees will be deducted from that amount if needed. There is no outcry when the court takes a fee.
Under that scenario, if the defendant fails to appear, no one will go looking for them. Bail agents are financially responsible to ensure defendants appear for court. And if they don’t, bail agents will look for them and will find them using their own resources and not the taxpayer’s.
If there is no punishment for criminal activity, there can be no solution toward a path of rehabilitation. Non secured release for truly indigent or poor individuals who have committed a low-level, non-violent crime is acceptable. For those who commit more serious offenses and/or have prior criminal histories, financially secured bail is acceptable.
Eliminating the Constitutional right to bail as outlined in the Bill of Rights as a wholesale option, is not acceptable.