Bail Reform and Plea Bargaining

by Olivia Ghosh

The intricacies of the United States’s legal system are further complicated by two key issues: bail reform and plea bargaining. Current bail and plea bargaining practices may infringe upon 5th and 6th amendment rights as well as the principle that an accused criminal is “innocent until proven guilty.” The Roosevelt Institute spent an hour on Tuesday, November 24, discussing the various complexities, consequences, and alternatives to the two practices.

The discussion began with an overview of bail and the history of monetary bail. Monetary bail is a relatively recent installation in the justice system. Release on recognizance — a contractual agreement to appear in court — has historically been the favored practice. However, the crux of the issue lies in the question of whether holding an individual pretrial is a violation of the presumption of innocence principle. When one is arrested, a judge determines a monetary value for bail based on the likelihood that the accused will flee or pose a threat to society. This amount must be paid in order for the accused to be released before his or her trial.

The discussion focused on several aspects of bail. First, many participants agreed that monetary bail is problematic because low income, minority groups are often the ones unable to pay bail. In this case, they go to jail and may lose their jobs in their absence even in the case of total innocence. To prevent this, some members suggested that judges should take into account the accused’s income before determining bail in order to set an amount that is fair but is not impossible. However, many people found bail to be a necessary evil in preventing potential criminals from fleeing. Despite this, there was enthusiasm for proposed bail alternatives to protect the rights of the accused including risk assessment programs and other pretrial programs that cost less than holding people in jail.

When the discussing plea bargains, many similar issues were raised. A plea bargain happens when a defendant pleads guilty to a crime in exchange for a lesser sentence. Most of the cases in the justice system are never brought to trial because of plea bargains. Because the courts and accompanying public defenders struggle to process their current caseload, much of the group agreed that some form of plea bargains are necessary. This position was countered by members who noted that many things are unjustly criminalized in the United States and that the issue would be partially solved if fewer things were illegal. However, in our current pretrial system, low income people are often coerced by overworked prosecutors into taking plea bargains when they would perhaps have gone to court had they more knowledge or better lawyers. To combat this, some members proposed that the prosecution should be legally obliged to disclose all evidence to the accused.

The final thoughts of the night circled back to a few key policy changes. First, many people mentioned giving public defenders a lot more funding in order to provide low income people with counsel at bail hearings and better defense against plea bargains. Many members also mentioned decriminalization as a solution to these issues among others.