How Bail Traps the Poor in Jail with Scott Shackford

The August/September 2018 Reason Magazine cover story features an issue of bi-partisan interest — the injustice of the cash bail system, which coerces poor defendants into guilty pleas. For those who can pay, bail means avoiding jail before they even get a trial. For those who can’t pay, it often means lost jobs, and mega-hassles, even if they end up being found innocent. Does this represent a violation of the great American legal principle of innocent until proven guilty?

In the essay, author Scott Shackford details several sad and often infuriating stories of people who clearly pose no threat to society being held on exorbitant bail charges. While it’s understandable that we would lock up a murder suspect with a criminal record awaiting trial, the whole point of the bail system is to allow those who are wrongly convicted or generally law-abiding citizens to serve only the time they are formally sentenced to — not a pretrial jail term that can sometimes be as long as the actual sentence.

Around half a million Americans are sitting behind bars who have yet to be convicted of a crime, writes Shackford. This issue has brought together some strange bedfellows, including Senators Rand Paul with Kamala Harris (co-sponsors of the Pretrial Integrity and Safety Act), as well as Google’s charitable arm with the Koch Foundation. Most recently, Bernie Sanders introduced the No Money Bail Act, but like Harris and Rand’s attempt, the bill is unlikely to pass through committee.

While Federal reform has stalled, Shackford takes note of a handful of state experiments with reforms that are making the system less biased against those who can’t afford bail. These efforts include eliminating cash bail, and encouraging judges to find alternatives to putting people in jail before their trials.

Some blame the $2 billion bail bonds industry for the lack of reform to date. Google even began blocking their ads on its search platform. This approach, however, may be flawed. Bail bonds, after all, are a legal service, and one that helps the system to function at that. As Marginal Revolution blogger Alex Tabarrok notes, “preventing advertising doesn’t reduce the need to pay bail, it simply makes it harder to find a lender.” Furthermore, taking away the option of judges to detain people who can’t afford bail has in some cases led them to merely put revoke that option altogether and hold them without bail.

Shackford joins the show of ideas, not attitude, to tackle a difficult but important topic of the American justice system. He and Bob will discuss the constitutionality of bail, and why the founders considered it important enough to limit “excessive bail” directly in the Eighth Amendment to the Bill of Rights. Pick up a copy of Shackford’s article on newsstands, and tune in for the full hour for your weekly dose of libertarian ideas.