How does the US bail system work?
As a Kentucky criminal defense attorney based in Lexington, I’ve learned that the general public typically favors high bail unless it applies to them or to a loved one. When it’s personal, they don’t want to be stuck - or have a loved one stuck - in jail because their bail is too high.
When talking with my clients, I often compare bail to placing a bet in Las Vegas, since they’re not much different: With bail, you are essentially placing a bet with the court that the person charged with a crime (the “criminal defendant”) will show up in court when required to do so, follow any rules they are given by the court, and that they will not pick up any new criminal charges. Just like in Vegas, if you lose the bet, you lose your money. Sadly, unlike in Vegas, you don’t make any money if you win the bet – you just get your money back.
So, the question when it comes to bail is, “Should all defendants be required to put up money to get out of jail?”
There’s no simple answer, but there have been several recent news stories about a new study that sheds light on the bail system in Kentucky. The study, entitled “Disparate Justice,” was conducted by the Kentucky Center for Economic Policy, and it found just how differently bail is handled from county to county within Kentucky. A Louisville Courier Journal article about the study leads with this sentence: “Kentuckians charged with crimes are treated so differently in every county when it comes to bail that they might as well live in different countries…” The Herald-Leader’s story is headlined, in part, “Where you live in Kentucky often determines if you stay in jail.”
Both statements are fascinating, as the study highlights dramatic disparities in the way our criminal justice system operates. For example, the Center’s researchers found that in McCracken County only 5 percent of defendants are released without having to post some amount of money, compared to 68 percent in Martin County. In Fayette County, only 18 percent of defendants got out of jail without having to put up any money. Put another way, in McCracken County 95 percent of defendants get out of jail “free,” but in Martin County only 68 percent get out “free.” That’s quite a disparity.
There’s no doubt these disparities make the job of a criminal defense attorney quite difficult when working with an unfamiliar judge. And there’s no doubt these numbers matter, because statewide, when cash bail is set, only 39 percent of defendants can afford to come up with the money. Which means they get stuck in jail indefinitely, unable to be with and/or care for their families and unable to work or otherwise make amends and/or contribute to society, at least until they are able to post bail or their case comes to trial.
They simply drain the system and taxpayer dollars, since the jail is required to house them, feed them and provide medical care for them during their entire stay. The fact is, the system is requiring criminal defendants to post bail because judges and prosecutors are worried defendants will not come back to court unless they risk losing money if fail to show up. But data show that’s not necessarily true.
For example, in Washington D.C., 90 percent of criminal defendants are released without any financial bail. One would logically assume that Washington would therefore experience a high rate of missed court appearances. But the opposite is true: Ninety (90) percent of defendants returned to court, and 91 percent were not charged with new offenses while awaiting their next court date.
This is exactly why many criminal defense attorneys are pushing for higher rates of non-financial bails. As new laws are proposed to deal with this issue of inequitable bail, I ask that every Kentuckian consider concerns like those expressed here before deciding whether or not financial bail is really in Kentucky’s best interest.
Eric L. Ray is a criminal defense attorney based in Lexington.