Debate Desk
Is Cash Bail Unjust, and Did Ending It Make Communities Safer?
Bail should depend on risk, not wealth alone; but systems that release dangerous defendants without a hearing put victims and witnesses at risk.
The claim
Critics argue that a person too poor to post bail sits in jail before trial while a wealthier defendant charged with the same offense goes home. Pretrial detention costs people their jobs and housing, and pressures them to plead guilty, so ending cash bail, they say, makes the system fairer without hurting safety.
The answer in three points
- The Eighth Amendment forbids excessive bail, and the presumption of innocence is a core American principle. A person who is not dangerous and likely to appear should not sit in jail for want of a few hundred dollars. Reform is a legitimate goal.
- Bail exists to secure two things: appearance at trial and the safety of the public. A system that replaces bail with nothing, or with a computer score, has to answer the second purpose. A judge should be able to hold a dangerous defendant, whatever his means.
- The best reforms look at risk. Hold the violent and the repeat offenders after a prompt hearing, release the low-risk with reminders and supervision, and keep a judge in the decision. Conservatives and civil libertarians agree on more than the slogans suggest.
Public safety and fairness to the accused are both served by hearings that look at each case.
The numbers
- The Eighth Amendment provides that excessive bail shall not be required, according to the text of the Constitution.
- Illinois ended cash bail statewide under its SAFE-T Act, which took effect in September 2023, according to the Illinois General Assembly.
- A federal pretrial system adopted after the Bail Reform Act of 1984 permits detention of defendants judged dangerous, according to the text of the statute.
What they will say next
"Poor defendants are jailed for minor charges." That is the case to fix, and a narrow reform could focus on low-level offenses. It is not a case for releasing people charged with violence without a hearing.
"Data show most released defendants return to court." Many do, and the cases that matter most are the small share who commit new violent crimes while free. A single victim of such a case is one too many, and judges should have the tools to prevent it.
"Algorithms are more objective than judges." Risk scores can help but they reflect the data they are built on. A judge is accountable to the public and can weigh facts a score cannot.
"Bail bond companies profit from poverty." Many critics of the bail industry are right about its flaws. Pretrial supervision, text reminders and prompt hearings can replace it without discarding detention for dangerous defendants.
The law should treat the poor and the rich alike and protect the public alike. A good system does both.
"Pretrial detention causes guilty pleas." It can, and speedy trials reduce that pressure. Prompt hearings address it better than a policy of releasing people without review.