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Uniform bail is unfair

Uniform bail is unfair

In a recent brief, the federal Department of Justice says it is unconstitutional to demand the same amount of bail from all defendants charged with the same offense and thereby forcing the poor to sit in jail while richer defendants go free pending trial. It may indeed be unconstitutional. It is plainly unjust.

The proper purpose of bail is to enable defendants to go about their lives while making sure that they show up for trial, that they do not threaten witnesses, and, at least arguably, that they do not commit new crimes while waiting to be tried for the ones they are accused of. It reconciles liberty for the accused with security for the community.

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Sometimes, no money bail is needed. But when it is needed, it ought to be set at a level that serves those purposes. It should not be so high the defendant can’t pay it: Then it would provide no liberty for the accused. Despite being presumed innocent, he would be stuck in jail. At the same time, it should not be so low that the defendant can easily forfeit it: Then it would provide no security for the community.

If you consider the defendant’s resources and needs, you can thread this needle for a wide range of defendants.

But if you do not consider the defendant’s resources, if you go by a fixed schedule that charges a certain amount to anyone charged with a certain offense, you will charge an amount that only serves its purpose for some defendants. For defendants richer than the schedule had in mind, the amounts may be trivial when they’re meant to be substantial. If you ask a billionaire to post $100,000 bail, you might as well release him without any money bail at all. For defendants poorer than the schedule had in mind, a figure meant to be low may be unattainable. Some people cannot come up with $200, even if their freedom depends on it.

From a perspective of the constitutional right not to be charged excessive bail, a demand for more bail than the defendant can pay seems unacceptable, at least when a lower amount would serve the purpose.

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From the perspective of the constitutional right to equal protection — the right invoked by the justice department — fixed bail schedules are troubling because they force the poor to sit in jail when richer people would go free.

For both reasons, fixed bail schedules should be abolished. They may be unconstitutional. They are certainly unjust.

First Published September 3, 2016, 4:00 a.m.

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