Why Bail is Inherently Excessive – and Unconstitutional

Jay Leiderman
By: Jay Leiderman
June 18 2017

“Excessive bail shall not be required…” Eighth Amendment to the US Constitution.  Even so, this very moment, approximately 450,000 people who have not been convicted of a crime are being held in U.S. jails. Many of them are there simply because they cannot afford to pay for their release. As detailed below, bail is inherently excessive and unconstitutional.

Bail reform is needed to ensure the poor have the same access to release than

Bail is intended to cause people convicted of a crime to appear at their court date. In some states, bail can be denied if someone is a flight risk or if they pose a threat if released from jail. In most states, release can be arranged through a third party — a bail bondsman – who then keeps a percentage of the bail. Bail has existed in various forms for centuries, though the commercialization and monetary element of our current system is a more modern invention, one that has serious consequences for don’t have money to pay it.


Excessive bail is prohibited in the Eighth Amendment of the United States Constitution, but for the thousands of people who sit in jails because they can’t afford the cost set by the courts, bail is inherently excessive and, therefore, unconstitutional. It can also cost people their jobs, custody of their children or semesters of their education.

The for-profit pretrial release system in the United States has spawned a $2 billion-a-year industry of commercial bail bondsmen, who sometimes collect 10 percent of the full amount of money set by the Court regardless of whether the person is found innocent or guilty. This amounts to financial punishment for people who can’t afford to post their own money for their release.


While this commercialization of the U.S. bail system is astonishingly unjust, it alone is not necessarily the root of the problem. Problems also persist in states without sureties or bondsmen. In Kentucky, for example, commercial bail bondsmen are prohibited. It is also a “right to bail” state, meaning that people can’t be denied their Eighth Amendment right unless they are charged with a capital crime. Thus, Kentucky courts, like in so many other states, will often set conditions of release at an amount that is incredibly high so that someone who is deemed to be a threat or a flight risk can’t afford it.


The impact of bail on people in poverty is also in conflict with another amendment to the constitution – the 14th Amendment, which offers equal protection under the law. Our bail system affects the poor in ways that don’t affect the wealthy. In other words, people are essentially detained because they can’t pay bail, not because they are a threat or a flight risk.

bail is inherently excessive and unconstitutional

Many people arrested for minor crimes – traffic offenses or misdemeanors such as public intoxication – are met with sums under $1,000, which is little more than a nuisance for those with money and an impossibility for someone without it. As critics point out, this disparity represents a breach of the equal protection clause of the 14th Amendment, an argument that is being made in cities around the country to combat a system that disproportionately affects the poor.


Defenders of our current bail system use arguments that echo many “tough on crime” sentiments, namely that bail reform advocates want get-out-of-jail-free cards for people who should be dealt with more harshly by our system. Yet, just like the other debates centered around our criminal justice system, being tough on crime too often means being tough on people who are financially challenged.

Judges set bail the same for poor and rich alike

It’s no surprise that people with great wealth don’t face the same problems as poor people. But this inequality shouldn’t be built into our criminal justice system. It’s unreasonable and it’s fiscally irresponsible, contributing to the incredibly high prison and jail population in the United States.

Even the term “unconstitutional,” while accurate, fails to encapsulate the impact our system has on people’s lives. In addition to the challenges it presents in the way of family, employment and education, it also bleeds over into other parts of our courts. People who can’t afford bail often plead guilty in order to get out of jail and typically receive and accept harsher penalties than those who can pay.


While the more highly publicized debate about inequality in our criminal justice system is centered around drug crimes, non-violent offenders and mandatory minimums, hundreds of thousands of Americans sit in jail because they don’t have the means to do anything but wait.


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