What If There Was No Such Thing As Bail?

A jail, but no bail?  That’s the idea promoted in this New York Times op-ed by Maya Schenwar, editor-in-chief of Truthout, and it’s really quite a breathtaking idea.  Before getting to her point, it bears noting that Schenwar isn’t a lawyer, and demonstrates little grasp of the depth or complexity of the moving pieces of the legal system.

This makes her op-ed easy to pick apart on many levels, as she glosses over the details of the existing system with shallow observations like this:

Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.

Mayor de Blasio’s plan is a positive step. Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?

This is the sort of superficial tripe that makes those of us in the trenches wince, knowing that “reducing the backlog” sounds far more fun than it really is.  That said, outrageous new ideas are often easier to make when not bogged down by details or facts that just make it seem impossible to accomplish.  Sometimes, an outsider to the system sees something that one can’t see from the trenches.

Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?

Usually, it is because they cannot afford bail.

Okay, not quite an epiphany, but a truism. The vast majority of people held in custody in lieu of bail aren’t there because they’re dangerous father-rapers, but because the prosecution sought some silly bail amount, say $1000, to assure their return to court, and a judge, after a quick shrug and a funny look on his face, said “whatever.”  To people who have no money, a $1000 bail might as well be a million dollar bail. If you can’t make it, you sit.

In other words, we are locking people up for being poor. This is unjust. We should abolish monetary bail outright.

Well, not quite for being poor, but effectively, because they are poor. To a puppy prosecutor, fresh from law school where mommy made sure his Starbucks bill was covered, and to the elder prosecutor, now sitting on the bench to reach midlife hegemony, setting bail at $1000 seems pretty negligible.  BFD, each thinks inside his head.  But then, they never shared an apartment on 168th and St. Nicholas with six siblings, where new shoes were a big deal.

Some will argue that bail is necessary to prevent flight before trial, but there is no good basis for that assumption. For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place. (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)

Yeah, well, no.  This is just not correct, that “people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place.” It’s hardly that clear cut, but for reasons that are obvious to lawyers representing defendants at arraignment with prior warrants on their rap sheet, suggesting that showing up for court isn’t always their first priority. And even those who pose a risk of flight often get bail, because of some damn fine lawyering.  In other words, it’s just not this simple.

As for “racist assumptions,” there is a deeply uncomfortable reality experienced in courtrooms every day. Defendants don’t show. Sometimes it’s intentional, but more often than not, it just happens. They don’t show for appointments. They don’t show for court. There is an undercurrent of irresponsibility, a lack of appreciation that there are parts of the world where time and date matter, but it’s just not their part of the world.

Sorry to feed racist assumptions, but sit there a few hundred times waiting for a defendant to appear and you realize that something is amiss.  Call it racist all you want, but as Justice Milton Williams used to explain back before micro-aggressions were a thing, “don’t worry, counselor. Your client will be here eventually. He’s just on CP time.” Yeah, that’s how it was in court back in the bad old days.

Without bail, some defendants won’t return to court. We will lose some. We know it because we lose some now when they’re released on their own recognizance, and we lose some even when they have made bail. It happens. It’s going to happen. Let’s not pretend otherwise.

But that’s not the end of Schenwar’s argument.

In addition to being unjust and unnecessary, pretrial incarceration can have harmful consequences. Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-out counterparts, they are also more likely to be convicted at trial. As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars. People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.

Those who spend even a few days in jail can lose their jobs or housing during that time. Single parents can lose custody of their children. By exacerbating the effects of poverty, and by placing people in often traumatizing circumstances, pretrial incarceration may actually lead to more crime.

These points are certainly true.  Incarceration wreaks havoc with people’s lives, makes it substantially harder to fight and coerces guilty pleas from people who shouldn’t plead out.  And then comes the kicker:

Finally, monetary bail is at odds with the legal ideal of the presumption of innocence. If we want to grant people this presumption, we must not punish them before their trials.

Not to nitpick, but the presumption of innocence isn’t a “legal ideal,” but a foundational assumption. It’s not there because we believe, in our feelz, that defendants are innocent, but because we have to pick a side, guilty or innocent, with which to start a prosecution. In this country, we pick innocent.  Like all legal presumptions, it may not be the case, but it is still our starting point, and it either means something or it’s just legal masturbation.  And if it means something, then we’re incarcerating innocent people because of a speculative projection of what they might do.

As with the presumption of innocence, or driving on the right side of the road, sides need to be chosen as to what assumptions we’re going to drop on people’s heads.  Pretrial detention is expensive for us and disastrous for defendants and their families.  It’s almost always counterproductive, as we’ve ruined whatever normalcy of life they might have and left them with few prospects other than crime.  All to assure their return to court and prevent their committing another crime while a prosecution is pending.

The question is which of these values is greater, more deserving of society’s taking a risk.  Do we give defendants the benefit of the doubt as innocent people or not, and screw unmercifully with their lives?  Even if we lose  a few, they’re usually found eventually.  But ruining people’s lives based on off-hand numbers can’t be justified in a society that presumes them innocent.


47 thoughts on “What If There Was No Such Thing As Bail?

  1. Rob

    It sounds like your principal issues with Ms. Schenwar are as follows:

    1) We don’t lock people up because they’re poor, we lock them up effectively because they’re poor.
    2) It’s not that people who are considered an unacceptable risk are not granted bail in the first place, it’s that people who pose an unacceptable risk manage to get bail because the lawyer is smarter than the judge.
    3) The presumption of innocence isn’t a legal ideal, it’s a foundational assumption.

    As to #1, what’s the difference? Implicit bias rather than explicit bias?
    As to #2, that’s not an argument that the current system is working any better than what Ms. Schenwar is proposing. It reeks of arbitrariness, unless you’re the criminal defendant who knows how to shop for the best damn lawyer in town. Because shopping for criminal defense lawyers is super fun and easy!
    As to #3, not to get all Platonic on your ass, but a form is a form is a form. Call it foundational, call it ideal. The only problem is her phrasing was using the word “legal.”

    The fact that Ms. Schenwar is not a lawyer means her arguments don’t feat neatly into our litigious framework of ideas. But she’s on to something, as you suggest when you point out all the true things she said about how broken the bail system is. Good for her for putting this idea into the marketplace. I’ve yet to read a good argument why she’s wrong.

    1. SHG Post author

      Ignorant sophistry is no more attractive than intelligent sophistry. Sorry this went way over your head.

  2. Boffin

    The point of bail is so that the wealthy and connected need not fear being thrown into the meat grinder used to control the poor. Otherwise they might demand changes.

      1. Boffin

        While I don’t consider myself particularly wealthy or connected, I am confident that if I or a loved one were arrested, money and lawyers would quickly appear to get us out of there. I understand this isn’t true for those unfortunate people on the other side of the river, but this state of affairs doesn’t directly affect me or my neighborhood.

        Bail is a mechanism to ensure that only poor people end up in jail. Non-poor people aren’t very worried about the conditions there or the amount of time spent.

        1. SHG Post author

          I read what you had to say the first time, and there was no question about you or your ability to make bail. Your view is kinda nutjob conspiracy stuff. You conflate intention with outcome. I’ve never met a judge or prosecutor whose purpose was to warehouse people because they’re poor (because they’re black or Hispanic, yes, but not poor). That it works out that way is doesn’t mean that’s the purpose, but the consequence.

      2. Patrick Maupin

        I think he means that the system defaults to locking ’em up and throwing away the key (perhaps taking them out for a few hours to parade in front of a judge occasionally) but that bail is affordable enough that this default behavior doesn’t significantly impact many who vote or write letters to the editor.

    1. David M.

      Rob knows internal contradictions are cool and by God, he’s gonna find one before the day is done.

      1. SHG Post author

        And if he does, he gets a tummy rub. But he can’t mischaracterize what I write to suit his grasp, then blame me for it. No tummy rub for that. Nope. None.

        1. David M.

          I think it might be performance art. He hits that “freshman enjoying his Introduction to Philosophy” sweet spot so neatly it must be satire.

            1. Konrad

              Try leaning out out the window and yelling, “You kids get off my lawn and stop trolling me!” Shake your cane at them for emphasis.

              No need to thank me.

  3. Bartleby the Scrivener

    While I don’t agree with the position presented by her, I’d say there is at least some value in the idea of the government having a limited amount of time during which a defendant may be incarcerated while awaiting trial. I seem to remember reading about a place that offered the guarantee of a ‘speedy and public trial.’

    When I think of speedy, particularly in circumstances wherein a person is presumed innocent but incarcerated while awaiting trial, I cannot think a period lasting over a year even remotely fits the definition.

    …but maybe it’s me.

  4. Quinn Martindale

    I was curious, so I found a study of 75 counties from 1991 to 2004 which showed that defendants released on recognizance were more likely to fail to appear than defendants released on some sort of secured bond. Thomas H. Cohen, Brian A. Reaves, “Pretrial Release of Felony Defendants in State Courts,” Bureau of Justice Statistics (2007).

    1. SHG Post author

      But this can’t possibly surprise anyone. And yet, it does nothing to help those who are screwed by pretrial detention. It’s just another trade-off.

    2. Bartleby the Scrivener

      Okay, so the rates of failure to appear are higher number for those released without secured bond. That doesn’t address the objections made by those of us who find at least parts of this to be rather outrageous.

      Imagine a hypothetical person that has been arrested. They are not guilty of the crime for which they are are accused, don’t know the co-defendants, are so squeaky clean they could represent a soap company, and the bail is well beyond their means.

      How long can they be held in jail while waiting for trial before it’s unreasonable? A month? Six? Six months without a parent is a long time, and while foster homes can be great, they can also be difficult.
      How long can the average person spend in jail before they’ve lost their job, house, and car?

      …and until the person is actually convicted of the crime for which they are accused, they are presumed innocent.

      I don’t believe we should just do away with the system of bail, but the current system has definite problems that we should address. Citing a higher rate of failures to appear for people who do not have a financial stake in appearing for their court dates completely fails to address those problems.

      1. SHG Post author

        I don’t think QM was arguing in favor of bail, but merely noting that the claim that people ROR’d don’t fail to appear isn’t borne out by the evidence, as claimed in the op-ed.

        No valid point is made (at least to reasonably thoughtful people) based on falsehoods. Rather, the argument should prevail despite the fact that some people don’t return to court, a sad fact but a fact nonetheless.

  5. Jeff

    Funny, but when first seeing the title of her article, “Abolish bail,” I took it to mean that she was proposing having everyone arrested for a crime actually be barred from any pre-trial release. Want to take your DUI case to trial? Then you need to wait half a year. As unrealistic as that idea would be, it’s not hard for an attorney to realize how that actually could create some positive reforms in the justice system down the road. So I thought the article would be much more interesting than it actually was after I realized what she meant.

  6. LTMG

    (Flashing red sarcasm light) Schenwar might consider the possibility of eliminating the need for bail entirely by conducting the trial within 12 hours of the arrest, sentencing to follow immediately afterwards. Organic greengrocers could occupy the storefronts once leased by the bail bond offices which went out of business.

    1. SHG Post author

      Ironically, that was closer to the mark of what was intended for bail when the nation was born. It just didn’t all that long for a case to be tried, unlike today where it can take years. The Rube Goldberg machine we have now wasn’t always in place. Which is better is a toss up, largely dependent on enlightened self-interest.

  7. Piedmont

    I appreciate your taking down of the lazy claim of racism; that’s what stuck out to me in an otherwise thoughtful article I mostly agreed with. The point about young prosecutors not understanding how out of reach a $1,000 bond can be is also well-taken.

    A problem not addressed is that “pretrial services” is something not always available, even to low-level defendants. Without these, either formally or ad-hoc, a lot of defendants are going to recidivate or get in other trouble. What would be really helpful is for there to be more of a push to make resources known and available. The top-dollar former Chief Deputy District Attorney is going to know all of these; the new guy fresh out of law school isn’t.

    1. SHG Post author

      It’s unfashionable to deal with politically incorrect realities, but I chalk them up to significant cultural differences. Either way, it happens, and there’s no denying that reality.

  8. Richard G. Kopf


    According the NYC Comptroller, it costs $96,232 per inmate per year at Rikers. While the federal system (Bail Reform Act of 1984) is hardly perfect, the preference for release and then supervision by pretrial service officers under strict conditions is a decent model. I can’t remember the last time I saw a federal case in our court where bail (money) was required.

    Of course, we also engage in outright “preventive detention” which is an anathema to many. That said, there is a certain honesty required by having to state the reasons the judge is detaining someone, even if that explanation is contained in “fill in” the blank form.

    By the way, I did a lot this type of work while serving as a Magistrate Judge for five years. On the other hand, I don’t know a damn thing about New York.

    All the best.


    1. SHG Post author

      The quantity of drugs in SDNY and EDNY tends to make the detention presumptive, and rarely can a defendant overcome the presumption. I really hate that.

      On the other hand, I love PRBs with a couple of FRPs. That preserves the pool of resources available for counsel.

      1. Richard G. Kopf


        Re: drugs in SDNY and EDNY:

        In terms of drug cases, measured on a per judge basis, for the period ending September of 2014, our per judge felony criminal caseload was 228. SDNY’s number was 64 and EDNY’s number was 81.

        We ranked 7th in the nation and 2nd in the Circuit. From 2008 to 2012, drug convictions comprised the largest portion — 46 percent — of criminal convictions in federal court in Nebraska, according to a U.S. Sentencing Commission report. Of that, about 58 percent of Nebraska’s federal drug cases involved meth — more than 40 percentage points above the national average.

        Out here, in a drug case, the trick is to see the pretrial services officer quickly to propose a release plan. That gives the officer time to investigate it, so the MJ can, armed with the release plan, say the presumption is overcome and he or she can do so with a straight face. The defendant may be detained initially, but reviews of detention are freely given.

        All the best.


        1. SHG Post author

          I was previously unaware of the correlation of living in Nebraska and meth, but it makes perfect sense.

      2. Marc R

        What about ankle monitors plus high bail? When the judges here act aghast (“but it’s FOUR ounces!”) we point to the lack of a victim, lack of violence and show his appearances after prior similar arrests. Kind of hard to justify the danger to society when there’s no complaining victim and they’re given house arrest.

  9. David

    The author of the article discusses one aspect of pretrial detention that is often overlooked, and which I find to be particularly troubling.

    Most troubling is the effect that jail security procedures have on case investigation. Where I work, the jail records all jail telephone calls (other than calls made to attorneys on a do-not-record list). The jail also documents the identities of the persons who make all in-person visits. When a case is set for trial, it is typical for the prosecuting attorney’s office to request and receive all recorded telephone calls that a defendant has made during his time in custody. In an important case, a detective will listen to the phone calls. In an unimportant case, a college intern will listen to the phone calls.

    Clients often make mistakes that would go undetected if they had been out of custody. They attempt to contact the alleged victim; they discuss the facts of their case (despite their attorneys’ advice that they avoid any such conversations); they make statements that are intended to be perfectly benign but which are interpreted by the prosecuting attorney to be incriminating.

    Some of these mistakes can result in new charges: witness tampering, witness intimidation, violation of a court order, etc. These new charges sometimes make it foolish to take the original charge to trial, as the new charges so substantially increase criminal liability that a plea bargain becomes the best option.

    Bottom line: Pretrial detention makes it more difficult for a defendant to vindicate himself or herself at trial. This is too rarely discussed.

      1. David

        Sorry. I meant the author of the op-ed under discussion in the article.

        I hope that you are having a great day. As always, thanks for the thought-provoking article.

  10. BillyBob

    It’s all very confusing. Is it better to give than to receive, or is it more fun to give than receive?

    I know a semi-famous CDL who said, who told me: “[the system] sucks.” And I believe him. After reading all of the above, I’m wondering how many of you have actually been arrested, incarcerated for pre-trial on excessive bail, and then either released or not released for reasons of not coming forth with bail?
    It’s top-down, not bottom-up. There’s no feedback. It’s a one-way street, so to speak.
    All I know is that system we’re stuck with keeps a heck of a lot of people busily employed, and crime, while reduced in our time, continues unabated. There appears to be no deterrent effect whatsoever.
    It’s all very confusing.

    1. SHG Post author

      Spare us the quotes from the “semi-famous CDL,” please. I believe he’s better known for “fly me.”

      1. BillyBob

        “Fly me”?!”
        Am drawing a blank. I know more than one semi-famous CDL, and that would include you. Ha. The one I was referring to is now in prison, I believe. Due to be released soon. Prison works wonders on some folks. And has no effect on others. Weird is all I can say.
        P.S., he was the subject of an illegal and unlawful “sting”. ROR, bail was not a factor, but he has
        “restitution” to contend with. How one is able to make restitution (or pay child support) when one is in prison, is beyond me.

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