Bail and Pre-Conviction Confinement

Bail is a deposit that a criminal defendant can pay to buy some time out of jail before and during her court case. It's supposed to be an incentive to encourage defendants outside of jail to make it to court. If a defendant makes it to all of her court dates, then she gets her money back after the trial.

When my brother called me to ask what I think of bail, I said after a few hems and haws that I think the primary purpose of justice is restitution, or "making right", or "making whole again", that the most feasible restitution is a payment in money, and that the idea of buying your freedom back doesn't rub me the wrong way.

That was back then - probably a week or two ago. My opinion of bail has changed. I still do believe in restitutionary justice and in criminal torts, but I think payment for criminal wrongdoing isn't clearly enforceable until after conviction of the crime.

Bail isn't payment for wrongdoing, anyway. It's payment to not be stuck in jail pending a criminal case. It is a negative incentive that relies on the threat of confinement. The offer you can't refuse is this: pay us such'n'such lump sum of money, or stay in jail.

We like to think that our system presumes the defendant innocent until proven guilty. But if the defendant is presumed innocent, then how can it be just to confine her? If we are to presume her innocence, then we are to presume her complete liberty.

If someone is caught red-handed, then they should probably be tried on the spot. If that's not feasible, then charging them bail or keeping them confined until their trial might be just, since they were caught in the act. Otherwise, confining someone before conviction is an encroachment on someone's liberty without proof of wrongdoing, and that's no different from kidnapping.

The incentives for people to make their court dates should be actually positive incentives, or at least more positive than threatening to jail people who might be innocent. We do lots of things that we aren't required to do. Instead of all-out compulsion, we are "pulled" by the perceived benefit of those actions. The social benefit of good standing in the community can be the positive incentive for people to perform their procedural legal duties like showing up to court and paying their fines.

If someone doesn't show up to court, their PDA or DRO could simply stop covering them. They could get blacklisted, and other PDAs and DROs can refrain from covering the awol defendant too. Sure, this is still an offer you can't refuse; but it doesn't depend on threatening to jail people who aren't proven guilty.