Society has decided for hundreds of years now, that if a person commits a serious enough crime, then they should be imprisoned. We’ve developed systems to organize this, and come up with very specific ways in which to decide who should be imprisoned for what. Who deserves to have their rights stripped away from them? What do they have to do? Well that depends on who is enforcing the law. You see, incarceration has become the most used method of crime deterrence/intervention, and its use has grown exponentially since the 1970s (ACLU). When we look specifically at who is being imprisoned, we can observe that nearly 1 in every 3 black boys, 1 in every 6 Latino boys, and only 1 in every 17 white boys can expect to go to prison at some point in their lifetime. Instead of using other methods to prevent and deter crime, the United States has managed to incarcerate extensively, to the point of holding nearly 25% of the entire world’s incarcerated population (ACLU Mass Incarceration). If this wasn’t already enough of an issue, the criminal justice system goes even further. A very popular method of keeping those arrested in jail, and significantly decreasing their chances of succeeding during litigation, is posting bail (TED talk Bail project). 

We can learn a lot just by looking at the history and original intent of bail in our criminal justice system. That intent being, to ensure that the accused appears to all court dates (ACLU Bail History). It isn’t to disadvantage them in proceeding litigation. It isn’t to keep them away from society because they’ve been accused of a crime. The function that bail has in our criminal justice system is to ensure that litigation continues. However, this is not how it is used. As far back as the early 1800s, unreasonable bail has been set to intentionally keep accused in prison. This has life changing effects on the accused, who have not yet been proven guilty, and force them to serve before litigation is complete. Forcing accused citizens to stay in jail until trial/settlement puts them at risk of losing their jobs, unable to take care of their family, and unable to maintain their lives in society. This is preemptive punishment for a crime that they have not yet been convicted of. Holding accused in prison in anticipation of litigation also significantly decreases their chances of success in court (Robin Steinberg, TED Talk). This systematically sets them up to fail, ruins the lives of a potentially productive citizen, and further adds to the incarceration issue in our country. 

Often times, setting excessive bail is used with discretion. Discretion is pivotal function in our criminal justice system, but it is also a tool that is used to discriminate against minority populations. Setting bail systematically discriminates against minority populations in lower income areas, and sets accused citizens up for failure. Discretion as a whole is important because it allows for those involved in the criminal justice system (police, prosecutors, judges) to address each person’s situation as unique and use the best methods for that individual (Stephanos Bibas). However, often times this power is left unchecked, and those involved in the criminal justice system use it to discriminate against individuals based on race, gender, ethnicity, and so on.

There have been multiple solutions posed to solve this issue. One of which is an umbrella fix which would be to remove the bail function altogether in our criminal justice system. The other solutions are local and nationwide bail funds. Nationally, The Bail Project has shown that nearly all of the people who’s bail they’ve posted for have shown up to all of their court dates (Robin Steinberg, TED Talk). This fulfills the original function of bail in society. The Bail Project has shown that for the most part, people want to show up to court in order to clear their name, so that way they can keep living their lives and providing for themselves and family.  There are also local bail funds like the Massachusetts Bail Fund which posts bail up to $500 for those who need it. Organizations like this significantly boost the likelihood of successful litigation, and also ensure that people show up to their court dates. Bail itself has proven to become an injustice in our criminal justice system. Addressing this injustice with multiple solutions that can co-exist is an effective way to help others and make up for it. Organizations like The Bail Project have, on their own, managed to help citizens and society as a whole in an enormous way.