The Case for Eliminating Cash Bail

Cash Bail is inherently anti-justice, disproportionately impacting those who are already at a societal disadvantage. It's time to overhaul the bail system and focus instead on programs that will support defendants in the time between arrest/summons and trial.


What is bail?


Bail is a set of pre-trial conditions assigned to a person who has been arrested to ensure their compliance with the law. It is a constitutional right granted by both the United States’ and the Maine constitutions.  A cornerstone of the United States justice system is the presumption of innocence, meaning that before incarceration, a person must be convicted of a crime. However, with a cash bail system, a defendant can be required to pay a fee before release. If they cannot pay, they are jailed until they can pay, meet with a judge, or go to trial. This could be just a few days, but it could also last for years. 


How is that legal?


The Statutes relative to the Maine Bail Code are found in Title 15, Chapter 105-A and express in part that anyone who is arrested is entitled constitutionally, to bail.  The purposes for bail, as delineated in the Maine Bail Code are to ensure a defendant’s appearance in court, to ensure the safety of the community, to preserve the integrity of the judicial process and to ensure that a defendant does not commit new criminal offenses (Maine Bail Code, n.d.). The idea is that bail is collateral - if a person pays bail, abides by all restrictions, shows up to court, and is found innocent, they will get the money back. But there's no evidence that money (cash bail) is even necessary to prevent new criminal conduct or ensure appearance in court. Defendants do that anyway, and in fact, COVID-19 showed us that with increased pre-trial supervision (rather than pre-trial incarceration) led to higher rates of court appearance and lower rates of new criminal conduct.

As of November 2020 in Maine, out of 2,113 pre-trial cases, supervised by pretrial case managers, 99% appeared in court, and 95% had no new criminal conduct. This is a significant increase from 2017, when 98% appeared in court, and 93% had no new criminal conduct (personal communication, S. LaGrega, October 27, 2020). Thus, COVID-19 provided a unique opportunity to explore new ways of carrying out pre-trial supervision, that honor Maine’s stated constitutional commitment to least restrictive bail conditions and a presumption for Personal Recognizance PR bail.  


Racial injustice

When assessing the inclusiveness of coverage of the Maine Bail Code, one must consider the disproportionate arrest and incarceration of Maine Black, indigenous, and other peoples of color (BIPOC) reflected in our current jail population.  That is, while BIPOC make up approximately 3% of the population in Maine, they account for 11% of Maine’s jail population (Prison Policy, 2020); excluding them disproportionately from the protections of the Maine Bail Code’s access to bail. Considering that BIPOC are more likely to be stopped and arrested by police it follows that Black Mainers are six times as likely to be incarcerated as white Mainers (The Sentencing Project, 2020).  In addition, BIPOC in Maine typically experience unemployment and poverty at approximately two times the rate of white people (US Census Bureau, n.d.).  Thus, when BIPOC are disproportionately arrested and incarcerated, and they are more likely to be poor than their white counterparts, the negative effects of cash bail logically disproportionately impact BIPOC.


Recommendations

To put it simply, my project partner and I believe cash bail should be eliminated entirely. There is no evidence that it works as intended, and COVID-19 presented an opportunity to change the way pre-trial supervision was run, which led to more success for defendants. Maine has a robust pre-trial supervision program, which could be expanded to truly meet all needs assumed to be met by cash bail systems across the state. Reforming the Maine Bail Code to eliminate cash bail could stop the practice of incarcerating innocent (pre-trial) individuals, which has implications for their success and well-being in their future. The United States and Maine constitutions both guarantee presumed innocence until proof of guilt - and its time the justice system actually reflected that.


Comments

  1. Kathryn WhiteheadDecember 9, 2020 at 3:02 PM

    Hi Emily,
    Wow thank you for looking into this topic. I am embarrassed to admit how unaware and unfamiliar with the current bail procedures in Maine. I am more embarrassed to admit I work within the court system frequently. The stats you share regarding the racial injustice in Maine and the fact African American Mainer's are 6 times more likely to be incarcerated then white Mainer's clearly demonstrates systemic failures. I agree with you and your partner's recommendations.

    Great work!

    ReplyDelete
  2. Social Welfare Policy IIDecember 10, 2020 at 10:51 AM

    Emily!

    What an important topic to address! I found the statistics you included regarding pre-trial case-management supervision really telling of the power of these supports for those awaiting hearings. In my opinion, cash bail only functions as a racist tactic to keep BIPOC communities enslaved and controlled by the state/government. I agree with your recommendations to eliminate this practice by reforming the Maine Bail Code. Also, it's very likely you've already listened to this podcast, but Serial (specifically season three) really delves deep into just how corrupt the criminal justice system and includes so many important areas for advocacy!

    ReplyDelete

Post a Comment

Popular posts from this blog

Are White People Inherently Racist?

 This week's readings, and especially "I Am Not Your Negro" (2018), have forced me to come to very honest terms with my own internalized biases in regards specifically to race.  I grew up in a small, predominantly white town and so never really thought about race. For years, I considered this to be an asset - how could I be racist if I'd never been told to hate people of color (POC)? How could I be racist when I was raised to judge people based on their character, and not on their appearance?  It wasn't until the protests in Ferguson, Missouri in 2014 that I began to come to terms with the fact that my whiteness, by default, placed me in a position to not only be ignorant to racism, but to perpetuate it without even realizing. I have mostly to thank authors and activists of color for writing articles about race-based police brutality and putting the lifelong experiences of POC into terms understandable by white people.  As we move into what I keep seeing referred ...
Read more

Who is Deserving?

This week, the Ingram & Schneider (2005) article really resonated with me, and felt especially relevant in our current political climate.  While there have long been division among people for various religious, moral, and political differences, the "us vs. them" mentality seems stronger than every these past few years. The divisions also seemed to be fueled by the same mechanisms that are currently bringing people together, such as widespread internet usage and virtual mobilization.  The "deservedness" discussed in the 2005 article refers mostly to who is and is not perceived to be deserving of good, positive things. But it also made me think of the way violence is justified against members of marginalized populations - the 17-year-old who shot and killed two people is justified in doing so because the protesters "attacked" him - they were deserving of death, and he is deserving of mercy.  Ingram and Schneider (2005) also mention the tendency for group...
Read more

A Post-Ruth World

 Friday, September 18th, at around 8pm, two friends were at my house for dinner. One of them looked at her phone and gasped, "Ruth Bader Ginsberg. She died."  My initial reaction was, "oh, shit." As a white woman of European descent, RBG represented to me the voice of gender equality on the Supreme Court bench, and her loss threatened to set back the many advances she supported.  But over the next couple of days, I saw many posts from WOC, Indigenous women, and BIPOC of all genders calling out the many harmful decisions RBG made or supported during her tenure. It's very hard, for me personally, to acknowledge that someone so widely regarded as symbol of progress was, in actuality, only a symbol of progress for a small part of the population.  I'm not saying RBG didn't do great things, nor am I saying no one is allowed to mourn the loss. She made her way to the Supreme Court as only the second woman ever, and the first Jewish woman. Her legacy is certainl...
Read more