One of the cruelest punishments doled out by our criminal justice system happens before the defendant is even convicted of a crime: bail.
In an investigation for the New York Times Magazine, Nick Pinto captured why the bail system is so broken:
[The Bronx Freedom Fund] bailed out nearly 200 [low-income] defendants and generated some illuminating statistics. Ninety-six percent of the fund's clients made it to every one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund's clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.
Bail is supposed to guarantee that defendants don't flee before trial. They either have a financial incentive to show up to court — the hundreds or thousands of dollars they put up for bail, which they can get back by showing up — or if they can't pay up, they're held in jail until the trial is over.
But as Pinto's investigation shows, bail is very often used to guarantee defendants don't go through a full trial — by essentially coercing them into pleading guilty. When defendants can't afford bail, they'll often take a guilty plea — even if they're not guilty — just to avoid being held in jail for weeks, months, or even years until their full trial is over. And these people tend to be poor and living paycheck to paycheck, so they can't afford to put up a few hundred or thousand dollars for bail.
It doesn't have to be this way. In federal courts and Washington, DC, monetary bail is severely limited. To ensure people don't flee or commit a crime while out, the system checks if someone poses a flight risk or is dangerous. If a judge decides a defendant is not, the person can go home, where he may be monitored further by drug tests and ankle monitors. This can cost the system less money: An analysis by the Administrative Office of US Courts found supervision by pretrial services officers costs about a tenth as much as keeping someone locked up.
But the system has a perverse incentive to not take on reforms. Since prosecutors can threaten defendants with bail, they can often get a conviction without a trial. This benefits every major actor in the criminal justice system — judges and public defenders don't get another case in their already overstuffed workloads, prosecutors can claim another victorious case, and police can mark down another successful arrest.
Of course, it brutalizes defendants — forcing them to serve a punishment for a crime they may not have committed. But who's going to come to the defense of someone who just pleaded guilty to a crime? Certainly not most of the public or politicians. So the system keeps churning out these cases.
As a result, we have thousands of people in jail who are totally innocent — very often because they're too poor to afford bail. It's unimaginably cruel.