Bail in America: A Tool of Coercion

Bail in America: A Tool of Coercion

Bail in America: A Tool of Coercion 150 150 Leppard Law - Top Rated Orlando DUI Lawyers & Criminal Attorneys in Orlando


The Eighth Amendment to the United States Constitution explicitly states that “excessive bail shall not be required, nor excessive fines imposed.” However, bail in America has evolved in such a way that it has become less of a tool for keeping people out of jail and more of a tool to coerce low-income defendants to enter a “guilty” plea because they cannot afford it. Even when bail is set at a low amount not everyone can afford it as they have to pay 10% of the bail amount to the court, in cases like this when a defendant’s bail is low but not low enough for them to pay there and then they will usually seek the help of a bail bondsman or bail bonding company.

How bail keeps the criminal justice system afloat

Let’s look at an example from the New York Times’ article “The Bail Trap” of how bail keeps the criminal justice system afloat: In 2013, New York processed 365,000 arraignments. Of those cases, less than 5 percent actually went to trial. However, even if a small portion of those defendants decided to assert their right to trial, it would be too overwhelming for criminal courts to handle. So, forcing defendants to plead guilty actually makes it easier on the courts.

A 2012 report by the New York City Criminal Justice Agency also shows that about 50 percent of defendants in non-felony cases who did not have to stay locked up before their trials, either because no bail was set or because they were able to afford it, were eventually convicted. When defendants had to stay in jail until their cases were resolved, the conviction rate jumped to a whopping 92 percent! The report is based on 10 years of criminal statistics and concludes that even pretrial detention itself “creates enough pressure to increase guilty pleas.”

Bail doesn’t just affect defendants during the time they are incarcerated – it has long-term effects too. Scott Hechinger, a senior trial attorney with Brooklyn Defender Services, said “Most of our clients are people who have crawled their way up from poverty or are in the throes of poverty. Our clients work in service-level positions where if you’re gone for a day, you lose your job. People in need of caretaking — the elderly and the young — are left without caretakers. People who live in shelters, where if they miss their curfews, they lose their housing. Folks with immigration concerns are quicker to be put on the immigration radar. So when our clients have bail set, they suffer on the inside, they worry about what’s happening on the outside, and when they get out, they come back to a world that’s more difficult than the already difficult situation that they were in before.”

Learn more about “the bail trap” here: http://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html

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Joel Leppard

Joel Leppard is an Orlando, Florida experienced trial attorney and managing member of Leppard Law, PLLC.

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