Bail

With the swift exchange of $100,000, another wealthy criminal is released from prison. But should money have the power to release a possibly guilty criminal back onto the streets? One of the greatest gray areas of the criminal justice system is money-based bails, which allow wealthy individuals to evade justice while those with lower incomes face incarceration for crimes they haven’t even been convicted of.

Singer R. Kelly was recently released from prison after a friend posted the required 10 percent fee of his $1 million bail. Kelly had turned himself in a few days prior after being charged with 10 counts of aggravated criminal sexual abuse. The charges against him are the culmination of years of accusations and scandals which started in 1994 when, at the age of 27, he married singer Aaliyah, who was only 15. Since then, further accusations of misconduct ranging from inflicting emotional damage to running a sex ring have been publicized by two separate documentaries, one from the BBC called “R. Kelly: Sex, Girls & Videotapes” and more recently, the Lifetime series “Surviving R. Kelly.”

Due to the many accusations of sexual abuse and pedophilia against him, Kelly poses a real danger to women and children now that he has been released. However, the current bail system in the U.S. gives dangerous people like Kelly the chance to go back into the public before their trial as long as they have the funds to make bail. Furthermore, money-based bail punishes low-income Americans and forces them to sit in jail for months for nonviolent crimes when they cannot afford bail. While bail makes sense for minor violations and misdemeanors, allowing those charged with violent crimes to post bail and buy their freedom poses a threat to public safety.

The current money-based bail system is both unsafe and discriminatory. Federal lawmakers should look to alternatives in place in other countries and U.S. states to reform the criminal justice system and remove money-based bail at the federal level.

Those who are charged with minor violations and who pose little risk to public safety should not be kept in jail awaiting trial. Currently, however, money is the determining factor in freedom for those charged with a crime. A bail system based on wealth effectively discriminates against low-income Americans, even if they pose little danger to society. While someone like Kelly can afford to walk free from a very serious charge like sexual assault or child pornography, someone without the necessary amount of money might have to stay incarcerated for a minor charge like possession of marijuana or trespassing. Alternative ways to determine whether or not someone should be released until their trial already exist and should be taken into consideration by federal lawmakers.

Canada, for example, has a totally different bail system. Their system has nothing to do with money but instead only detains those charged based on three grounds. These grounds allow detention pretrial to ensure the accused will show up to court, to protect the safety of the public or to maintain confidence in the administration of justice. This setup only detains people when absolutely necessary and is not overtly discriminatory like the money-based bail.

An alternative system similar to Canada’s is already in place in California, and while California’s new system is flawed in many ways, it presents the idea that rethinking and reforming the bail system is possible. In 2018, California lawmakers abolished money bails and introduced a system where judges determine whether or not those charged with a crime will be released before their trial based on risk assessment. The decision is based on a determination of if the accused poses a sizable threat to the public and if they are a risk to flee or evade trial.

With systems based on risk rather than wealth, those who pose little threat to the public can be released and those with extreme charges who pose a threat can be kept in custody. While many have criticized California’s risk assessment system as overly discretionary and discriminatory against low-income Americans, it is a first step toward reform. It pushes the emphasis of the bail system away from wealth and toward public safety. States like Texas have begun working on similar reforms as alternatives to the outdated system currently in place. Federal lawmakers such as Kamala Harris and Rand Paul have introduced bills to tackle this problem on a national level.

Producing an assessment that only takes current and past criminal charges into account would help make the bail system much less biased than it currently is. While it still runs the risk of overly detaining people in the name of public safety, it’s better than a system based on discrimination. As long as the system clearly defines what charges warrant detention, it will be a positive step for the American criminal justice system.

Money should not determine someone’s freedom. People like R. Kelly should not have the privilege of walking free while those charged with much lesser crimes are in prison simply because of their lack of wealth. This moral gray area will continue to exist until lawmakers agree to take a stand at the federal level.

Graham Guenette is a sophomore English major. Reach him at opinion@dailynebraskan.com or via @DNopinion.