More than half a million people are in jail simply because they can’t afford the bail set for them.

Excessive Bail (Eighth Amendment)

The Eighth Amendment currently states: “Excessive bail shall not be required.” This is supposed to help protect the presumption of innocence and strengthen the right to trial by jury, by making sure the government doesn’t set bail disproportionately high just to jail someone—before he has been found guilty—out of whim or malice.

Nonetheless, according to the Bureau of Justice Statistics, pretrial detainees account for almost one-fifth of the 2.4 million people incarcerated. More than half a million people are in jail simply because they can’t afford the bail set for them. It’s a pervasive blight.

The problem with the Constitution’s bail clause is that it speaks in vague terms about excessive amounts without giving judges (or anyone else) any guidance on how much is too much.

This is surely wrong for most minor or nonviolent offenses where release, before trial, should be presumed automatic.

The Constitution also doesn’t say anything about who sets the bail amount, or who is on the hook for the money the defendant has paid if he doesn’t show for trial. In many states, the police or a court-appointed bail commissioner has first shot at setting the amount, and judges generally follow what they say. It’s often difficult for an officer who has just dragged a pain-in-the-ass suspect to jail to turn around and let him out, and bail commissioners, who are oftenuntrained, usually follow the police recommendation or randomly assign an amount. Because most defendants can’t afford the payment, they turn to bail bondsmen—who make big business by preying on the poor and vulnerable.


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