The basis of a fair pretrial bail system should be the prioritization of the presumption of innocence and the provision of equal opportunities for defendants without racial, economic, social, political, or any other discrimination. The first idea for developing such a system is to assess the defendant’s risk of flight or danger to the community rather than their ability to pay. Specific factors that would influence the option and the size of a bail would include past criminal history, ties to the community, employment status, and mental health. This way, low-risk individuals can be released on bail while high-risk individuals remain in custody.
The second idea is to implement a case-specific approach that entails evaluating each case on its own merits. For example, an individualized assessment would consider the accused’s unique circumstances and the severity of the crime to determine appropriate bail conditions. It would also help avoid mandatory minimum bail or blanket policies that treat all offenses alike and tend to produce unjust outcomes.
The third idea is to implement non-cash bail options, such as real estate or other property. This approach would eliminate the need for the defendant and/or their family to look for cash and prevent unfair treatment of low-income individuals while fulfilling the key purpose of bail (Oakes & Fleming, 2018). Other alternatives include supervised release, electronic monitoring, or community-based programs that ensure the defendant’s appearance in court without imposing financial hardship or unnecessary stress.
The main rationale behind these ideas is their potential to promote fairness by focusing on the defendant’s actual risk rather than their financial status. This way, individuals would face proportionate consequences and options regardless of their income or wealth. Furthermore, the presumption of innocence prevents punishing individuals before they are convicted of a crime, reducing the costs to the penitentiary institution and the criminal justice system in general. Moreover, the absence of a minimum or mandatory cash bail helps reduce unnecessary pretrial detention, which has various negative consequences, including job loss and disruption of family life.
References
Oakes, B., & Fleming, W. (2018). Pressley says voters have a choice: Status quo or changing Washington. WBUR.