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We’re Living in a Surveillance Society, So Why Do We Need Bail?

Image of man behind bars of dollar sign
Image of man behind bars of dollar sign
Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
Andrea Woods,
Staff Attorney,
Criminal Law Reform Project
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April 25, 2017

The ACLU is dedicated to fighting the rise of a surveillance society. We represent Americans who don’t want to live in a world where our every movement, our every association, our every purchase, and our every communication is tracked and recorded. That is no way for a free people to live. Nevertheless, despite our best efforts, we now live in a society where our activities increasingly leave behind “data trails” of various kinds, with highly inadequate protections for our privacy. Cameras, license plate readers, and wireless RFID chips record our comings and goings on public transit, through toll booths, and into and out of office buildings. Stores and credit card companies log our purchases, Internet companies log our IP addresses, and our cell phones betray our locations.

But ironically, the very growth of such tracking sharpens our case in another battle we at the ACLU are fighting: to reform our bail system.

Why do we have bail? Most people would say the reason we require the posting of a bond by someone who has not been convicted and is therefore presumed innocent is to make sure that they show up for their trial. But that reasoning no longer makes sense in the modern world. Today we are enmeshed in social and technological systems that make it far, far harder than it was when bail originated to escape justice. We’re no longer living in a world where a suspect can skip a couple counties over and never be found. We have social security numbers, social media identities and networks, and again those omni-present cell phones. Few people can do without these things for long (and even the few fugitives with the skills to escape deep into the wilderness and try living off the grid rarely escape being caught in the end).

But, despite how easy it is to locate those rare people who flee their prosecution, most states’ bail systems require an accused person to pay money up front, ostensibly as collateral to appear for a future court date.

While the vastly increased ease of tracking and locating people undercuts the rationale most people recognize for bail, that is actually the least of the reasons to do away with bail. Many people may not be aware of this, but the United States’ bail system has degenerated into a human rights abomination, which the ACLU is fighting to end.

How bail evolved from protection to oppression

Bail has existed for a long time, but our current bail system would be practically unrecognizable to those who founded this country and borrowed the bail concept from English law. The importance of pretrial liberty—recognizing the dangers of detaining people without conviction—was a bedrock principle in early forms of habeas corpus. Historically, bail served to ensure the liberal release of most people accused of crimes, without judicial discretion or input, as a necessary safeguard of our right to be presumed innocent until proven guilty.

In our original bail system, money would only be owed after an accused person failed to show up for court (often referred to now as an “unsecured bond”). As the United States expanded west, and it became more difficult to find friends and family members to vouch for the arrestee, a commercial bail bonds industry emerged. These commercial bond companies started to proliferate and eventually warped the system into one requiring an accused person to either provide an upfront deposit of money or face an extended stay in jail. In short, those who can pay go home; those who cannot pay go to jail. Today, that wealth-based system incarcerates nearly half a million people.

And the frontier has closed. If anything, we’re moving back toward village life where it is easier than ever to release arrestees into the community without fear that they will skip town, never to be found again.

To be clear, we do not advocate for increased supervision of people released on bail; such surveillance should only be used only when less intrusive measures are not enough. We’re just highlighting the hypocrisy of maintaining our backwards bail system when it is beyond reasonable debate that money bail is the least effective tool we have to ensure that arrestees show up in court. Given that even rare “high-risk” cases can be managed effectively with modern technology, it is all the more outrageous that we continue to condition liberty on who can pay for it.

The majority of people released make their court dates without issue. For example, 95 percent of the Brooklyn Community Bail Fund’s clients make it to their court date, despite the fact that the program pays clients’ bail without requiring a bond. This is because paying money actually has little to do with why people show up to court. Very few people are willing, or able, to cut all ties with their work, family, and social networks and skip town to avoid a court date. Overwhelmingly, when a person misses court it is simply due to work or family obligations, a lack of transportation, or forgetting the date. In addition to the bail fund, there are other promising indications that court date reminders and transportation assistance can be more effective at ensuring court appearance than a bail bond.

At the same time, under the current system, bail bond agents actually have surprisingly little incentive to make sure a defendant shows up in court. Because the for-profit bail industry has lobbied for so many protections for themselves, those companies almost never lose money when their client fails to appear.

The disturbing truth is that our current bail system operates to provide political cover for judges, to give prosecutors the upper hand in securing convictions, and, ultimately, to punish people before they can put up a defense. And, in doing so, it strips accused persons—overwhelmingly low-income and People of Color—of their fundamental rights, disrupts families, and robs communities of sorely needed resources and stability.

Rather than requiring defendants to post money upfront, courts should consider: (1) avoiding money bail entirely, (2) using unsecured bonds instead of secured bail bonds, and (3) inquiring meaningfully into what a person can pay, and what would actually serve as the greatest motivator in showing up to court in the future. Only if there are real, documented reasons to do so should judges use tailored conditions such as check-in calls or travel restrictions, with extensive supervision a near-last resort before detention. Individuals should not be required to pay the costs of any pretrial release conditions. The ACLU is fighting bad bail practices in our litigation work as well as through our Smart Justice Campaign.

We hate the loss of freedom that comes from our creeping surveillance society. But that reality means there is even less rationale than ever before to maintain today’s wealth-based bail system. A system of bail that requires someone to pay for their freedom has no place in our modern society. That would be true even without our surveillance society, but becomes all the more true every day as the digital walls close in upon us.