Why Bail Matters

Thursday, June 17, 2010

Last session, state lawmakers responded to a series of tragic police shootings by putting on the ballot a constitutional amendment to give judges expanded authority to deny bail for criminal defendants.  If Washington voters approve the amendment this November, it will amend our Constitution for the first time in more than 20 years.

Thanks to TV crime shows, we all more or less know what bail is—a person who has been arrested can give a certain amount of money to the court in order to be released from jail while awaiting trial.  If he shows up to court as required, he gets his bail back, even if he’s eventually found guilty.  If he “skips bail,” the court keeps the money.  What the TV shows don’t talk about, however, is why we have a bail system in the first place.

Bail exists because of the most fundamental idea of our criminal justice system: Defendants are presumed innocent until proven guilty.  Until a person has been convicted of a crime, he should be treated just like any other member of society whenever possible.  Sitting in jail isn’t anybody’s idea of a good time, and it also means that defendants can’t attend to their daily lives or work to support their families.  Many people charged with crimes are found entirely innocent, or are convicted of lesser crimes than they were charged with.  Others might have to wait longer for trial than any sentence they might get even if found guilty.  (Not to mention that keeping people in jail is expensive.) 

Our nation’s founders thought that bail was so important that they included a guarantee against excessive bail in the Bill of Rights. Our state’s founders went even further by creating a constitutional right to bail for everybody except those accused of capital crimes.

The state legislature’s proposed constitutional amendment would allow a judge to deny bail not just to defendants in capital cases, but also to those who could potentially get life in prison if the judge thinks they may be violent.  Now, nobody denies that there’s a strong interest in keeping the public safe—but we have to make sure that we preserve our most fundamental civil rights at the same time. 

The biggest problem with the constitutional amendment is that it leaves a lot of wiggle room in how might be applied.  Courts often set bail higher for poor and minority defendants than for others charged with similar offenses, which leads to more of them being stuck in jail before trial because they can’t afford to post bail.  The proposed amendment would only make the problem worse.  People will end up with bail denials based not on their actual flight risk or danger to society, but on the color of their skin or other factors that should have no influence on setting bail.

We’re currently working on the bail issue as part of a task force made up of people representing all aspects of the criminal justice system—prosecutors, defense lawyers, judges, police, state and local legislators, bail bondsmen, victims’ advocates, prison officials, and of course the ACLU as a civil liberties organization.  We hope that this process leads to a bail system that both keeps the public safe and protects the rights of the accused.  In the meantime, we urge all of you to reject the constitutional amendment this November.  Amending our constitution to limit civil rights is the wrong way to deal with this important public issue.