Do Wealthy Defendants Get Better Bail Terms?

Do Wealthy Defendants Get Better Bail Terms?

The bail system in America is complicated. Judges are supposed to set bail based on how likely a defendant is to show up for court dates. But critics say wealthier defendants often get better bail terms than poorer ones. Here’s a look at the issues.

How Bail Works

After someone gets arrested, a judge decides whether to let them out of jail before their trial. This is called bail. The main options are:

• Release without bail: The defendant promises to return for the next court date.
• Release on personal recognizance: The defendant promises to pay a certain amount if they don’t show up.
• Cash bail: The defendant must pay the bail amount upfront to get released.
• Bond: The defendant pays a bail bonds company a nonrefundable fee, usually 10% of the bail amount.

Judges are supposed to consider factors like the charges, criminal history, and flight risk when setting bail. But critics say money often plays too big a role.

Wealthy Defendants May Have Advantages

Wealthier defendants often have advantages in the bail system:

• They can afford higher bail amounts more easily.
• They may have lawyers who get them better bail terms.
• They can show stable employment, finances and community ties.
• Judges may consciously or unconsciously favor defendants with means.

For example, billionaire Jeffrey Epstein was controversially granted work release while awaiting trial on sex trafficking charges. His wealth likely factored into the judge’s decision.

Poorer Defendants Face Challenges

Meanwhile, poorer defendants can face bail barriers:

• They may not be able to afford cash bail at all.
• Bonds may still be too expensive.
• They’re less likely to have lawyers to advocate for them.
• They may lack stable jobs, finances and community ties.
• Judges may discriminate against poorer defendants.

For instance, Kalief Browder spent three years in jail on Rikers Island because his family couldn’t afford $3,000 bail on a stolen backpack charge. He later died by suicide.

Wealthy Defendants Get Better Results

Studies back up the idea that wealth matters. For example:

• One analysis found that defendants in the highest income bracket were over 25 times more likely to avoid detention than the lowest income group.
• Low-income defendants are more likely to have unaffordable bail set than wealthy ones, according to a Prison Policy Initiative study.
• Higher income predicts a greater probability of pretrial release, per a Bureau of Justice Statistics report.

The data shows money makes a difference. Wealthy people often have the means to get out of jail pretrial. Poorer people languish behind bars.

Cash Bail Hurts Poor Defendants

Cash bail is especially criticized for harming poor defendants. When bail is unaffordable, people stay stuck in jail. This can cause:

• Job loss or lost wages
• Disruption to childcare, housing, medical care
• Pressure to plead guilty to get out faster
• Worse case outcomes

And research shows cash bail doesn’t improve court appearance rates much compared to non-monetary conditions. Unaffordable bail penalizes poverty more than flight risk.

Reforms Seek to Reduce Wealth Gap

Some jurisdictions have reformed bail to reduce disparities:

• New Jersey largely eliminated cash bail with positive results.
• California passed a law to base pretrial release mainly on risk, not money.
• Cities like Chicago now use risk assessment tools instead of cash bail.
• Charities help low-income defendants pay bail through community bail funds.

But progress is uneven. Many places still impose unaffordable cash bail routinely. And risk assessment tools raise concerns about encoded racial bias.

The Debate Continues

Views differ on the best bail reforms:

• Supporters of cash bail say it encourages court appearances and is needed for public safety.
• Opponents say poverty shouldn’t determine pretrial freedom. Community-based support and supervision can reduce risk instead.
• Moderate views support more affordable and individualized bail practices to reduce inequality.

There are good arguments on all sides. But clearly, a defendant’s wealth still impacts their bail treatment in many jurisdictions.

The Bottom Line

Money talks when it comes to getting out of jail pretrial. Wealthy defendants often have advantages dealing with bail and pretrial release compared to poorer ones. Reforms help reduce bail disparities in some places. But in much of America, defendants with means still have a leg up in the system.

More work is needed to make bail practices fair for rich and poor alike. Defendants shouldn’t stay stuck in jail just because they can’t afford to pay their way out.

Sources

Prison Policy Initiative
Bureau of Justice Statistics
The Pew Charitable Trusts
National Association of Criminal Defense Lawyers