Bond was created as a way to allow people who are awaiting trial to get out of jail, so that they would not be punished for merely being accused of having done a criminal act. Over time, bond has become a tool to keep people in custody rather than helping them to get out of custody pending trial.  We are used to thinking of the 8th Amendment in terms of cruel and unusual punishment, and the death penalty.  However, that same amendment guarantees the right to be free from excessive bail.  We should pay attention to the whole amendment.

It is not uncommon for bond to be set at a level that is out of reach for the defendant as a means of “keeping the community safe”, or ensuring that the defendant shows up for trial. Intentionally setting bond at a level that cannot be paid, turns the system on its head.

There are good reasons for wanting to keep a community safe, but since bond is inherently a financial tool, all it does is keep the community safe from poor people. According to this system, an accused murderer with financial means is somehow less dangerous than a poor person accused of trespassing or public drunkenness.  It sounds an awful lot like the issue in the affluenza case, in Texas where a teen was given probation after killing 4 people while driving drunk because he was too spoiled to understand the difference between right and wrong.  If you have enough money to make a high bond, you may have enough money to flee to a jurisdiction where you can hide and avoid appearing in court.

Speaking of appearing in court, there is no correlation between the amount of bond that is paid by an individual, and their reliability in appearing for court.  There are much better metrics to measure the likelihood that a defendant will appear in court than if they can make bond.

It seems like we forget sometimes that people are innocent until proven guilty not innocent until arrested.  It is unconstitutional to punish a person for being poor, just like it is unconstitutional to punish a person for merely being accused.

Inspired by this great story on NPR yesterday.

“Is America Engaged in a Vicious Cycle of Jailing the Poor?”