Ending Bail As We Know It

The amount of money we have has a big effect on the kind of life we can lead. Obviously, rich people have greater access than poor people to luxury cars, penthouse condos, and last-minute helicopter trips. I'm fine with that reality of life.

But when it comes to one's ability to be free - to be with one's family, sleep in one's home, or go to work - should money really be the sole, decisive factor? It is for people charged with crimes in Pennsylvania. Whether you are rich or poor is the only thing that determines whether you are free or incarcerated while you await trial.

A recent study in New Jersey found that 40 percent of people in New Jersey's jails were not serving a sentence based on a conviction. Instead, they were presumptively innocent people waiting for their day in court but unable to pay bail. In Philadelphia, that figure is 65 percent. According to another recent study, 54 percent of people in New York City's jails had bail set at $2,500 or lower, but could not pay it.

Our bail system has become a way to warehouse poor people. They often spend more time in jail awaiting trial than they face as a sentence upon conviction. Many such defendants have their charges dropped, or are acquitted outright, but are first required to spend days, weeks, months or more in jail. Another common problem is that people are coerced into pleading guilty by prosecutors who present them with a ghastly choice: stay in jail for months awaiting trial, or plead guilty right now in exchange for your freedom.

This practice has catastrophic consequences for defendants. Being incarcerated for even a short time can cost them their job, and a guilty plea can make it virtually impossible for them to find work elsewhere. Beyond that, pretrial incarceration can cost people their homes, their families, and everything else they hold dear.

However, it is not just the incarcerated defendants who suffer. We all bear the consequences of this misguided policy. It costs us, as taxpayers, millions of dollars to incarcerate people who have not been convicted and should be free. Further, we bear the social costs of people who come out of jail unemployed and potentially unemployable.

The purpose of bail is not to punish people who have been arrested (punishment comes in the form of a sentence after conviction). Instead, bail exists simply to secure defendants' appearance at future court proceedings. We now know that bail doesn't actually function that way. Washington, D.C., has virtually eliminated monetary bail but their flight rates have not changed. In other words, bail doesn't even do what it's supposed to do. It just ruins people's lives.

We bear the significant costs of our bail system in return for no clear benefit. That is why I am introducing legislation to end pretrial detention for failure to pay bail.

Under my bill, a judge could still set bail, but he or she would no longer be allowed to require that the defendant pay the bail to get released from jail. Instead, defendants would only have to pay their bail if they missed their court date. My bill would also allow a court to deny pretrial release to anyone who is a danger to public safety and to anyone who has a history of failure to appear at previous proceedings.

The concept of bail is a long-standing part of our criminal justice system. Bail is specifically mentioned in the U.S. Constitution and actually originated in ancient Rome. But it has changed over the years and it no longer works. It is time to reserve our jail space for punishing the guilty in accordance with their actual sentence. We can no longer afford the human and financial costs of warehousing people who have only been accused of a crime, simply because they aren't rich enough to buy their way out of jail.

Pennsylvania State Sen. Daylin Leach, of Montgomery County, is the ranking Democrat on the Senate Judiciary Committee.