Financial Bail Leads to Unequal Treatment Between the Haves and the Have Nots

Criminal justice reform attempts to address the various deficiencies that we find in our present-day justice system in hopes that the system will reflect the current values that our society holds true. One of the major issues that has come to the forefront over the last decade has been an increase in the incarcerated population and an overpopulation of our country’s jails and prisons. The increase in the incarcerated population has little to do with an increase in crime, but reflects more outdated practices that are putting more and more people in jail. One of the outdated practices that is currently being reevaluated is financial bail.

What is Financial Bail?

Financial bail historically was useful in ensuring that those criminal defendants awaiting trial would return to court if they were permitted to leave jail on their own recognizance. Financial bail is the practice of the court holding onto property as collateral or a deposit of money to ensure that the defendant will not be a flight risk and will return so as to claim their assets. However, crime in our criminal justice system leans heavily against poorer citizens, and the practice of financial bail has a constrictive effect on indigent criminal defendants awaiting trial. Unable to afford bail equates to serving time in jail while awaiting for the trial to begin.

How Financial Bail Affects Indigent Criminal Defendants

Bail is levied before conviction. This is important as our Constitution regards life, liberty, and property to be fundamental rights that may not be seized without due process. It has been estimated that 450,000 inmates that are in prison at any given time are awaiting their due process, and have not been convicted of a crime. Of this population, 75 percent of these inmates awaiting trial have been accused of nonviolent offenses, like property or drug crimes. Nonviolent crimes usually mean that under normal circumstances, these people would not be considered a flight risk or a danger to public safety; their only issue at this point is that they are unable to afford their bail. The vast majority of these inmates are from poverty-stricken backgrounds.

Financial Bail Determination in Florida

In Florida, it is up to the court’s discretion as to whether or not a person may qualify for bail and the amount that should be posted. The court considers the following when determining bail:

• The nature and circumstances surrounding the offense;
• The type and weight of the evidence that is levied against the criminal defendant;
• The connection between the criminal defendant and the community, employment history, mental health, financial resources, and familial ties within the area;
• The past and present behavior of the criminal defendant, whether he/she has any past convictions, whether he or she has been a flight risk in the past, and conduct at previous court proceedings;
• The extent and probability that the criminal defendant poses a dangerous threat to the community;
• Whether the criminal defendant poses a threat of violence or intimidation to victims or witnesses that may be involved in his/her criminal proceeding; and
• Whether the court believes the criminal defendant will commit another offense while out on his/her own recognizance; among other factors.

Experienced Criminal Defense Attorney in Fort Lauderdale

Depending on the amount that is set for bail, a criminal defendant may lose his/her right to liberty. Everyone deserves a fair bail determination, and an experienced defense attorney like Kevin J. Kulik can argue on your behalf to ensure that your interests are protected and you can afford the conditions set for your pretrial release. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.