No 'separate criminal justice system for wealthy Americans': Is WH right to push ending cash bail after parade attack?

Mark Hoffman / Reuters

Fact Box

  • On November 24, 2021, a White House official defended President Biden’s cash bail policy as promised in his 2020 campaign after the Waukesha parade attack, saying, “Ending cash bail will not automatically put people charged with crimes on the streets. It just means that whether you get bail should be based on the threat you pose, and not how much money you have in your bank account. [...] There shouldn’t be a separate criminal justice system for wealthy Americans.”
  • On November 22, 2021, Darrell Brooks Jr. was charged with homicide for killing six people and injuring 40 others after he allegedly drove his car into a Christmas parade over the weekend. His bail was set at $5 million and a hearing was scheduled for January 14, 2021. 
  • Brooks was initially on bail for $1,000 for another incident and released on November 11, 2021. The Milwaukee County District Attorney said on November 22 that “the State’s bail recommendation in this case was inappropriately low in light of the nature of the recent charges and the pending charges” against Brooks. 
  • A 2018 Charles Koch Institute poll found that the majority of Americans surveyed, 78%, believe the current cash bail system favors the wealthy, with 57% of respondents to be against jailing those who can’t afford bail.

Curtice (No)

The Biden White House has restated its desire to end the cash bail system. It comes just days after the Waukesha Christmas parade tragedy, where six people died, and over 60 were injured. The man suspected of driving an SUV through the Waukesha parade was released on $1,000 bail just days earlier.

The accused, Darrell Brooks, has a lengthy criminal record as well as two outstanding cases against him at the time of the attack. Anyone can foresee this becoming a more common occurrence if more violent criminals are released awaiting trial if the cash bail system is eliminated. Money bail is a centuries-old practice. Under the current system in the United States, judges have wide discretion in setting the final bail amount. They can and often do consider someone's financial status. Likewise, they can take the perceived flight risk of the accused, as well as the nature of their crime.  

Some high profile and wealthy accused criminals have extremely high bail set for them. For example, Michael Milken's bail for his insider trading trial was set at $250 million. Recently convicted murderer Robert Durst had bail set at $3 billion. OJ Simpson was denied bail entirely.

Less wealthy individuals may have to rely on family or a bail bond company. That, at least theoretically, puts pressure on an accused individual to comply with all legal proceedings. The biggest risk in eliminating the bail system altogether is that some dangerous criminals may be rereleased onto the streets, potentially causing a threat to public safety. As violent crime continues to rise in cities across the country, there couldn't be a worse time to consider eliminating cash bail.

Jimmy (Yes)

In a recent report on equality, the White House echoed Biden's campaign promise to reform the pretrial system. Biden claims the current system 'Disproportionately harms low-income individuals' and likens cash bail to a 'modern-day debtors' prison.' We are seeing a backlash to the report in light of the Waukesha parade tragedy, but cash bail is not the culprit and to argue such is a false equivalent. Biden is right; our judicial system is built upon the presumption of innocence and should not dictate people's freedom by the balance of their bank accounts. 

Of the 600,000 Americans in jail, over 70% are awaiting trial, generally because they can't afford to post bail. Hundreds of thousands of our poorest citizens are held for weeks without a hearing, effectively jailing them for poverty. This directly contradicts the Equal Protection Clause of the 14th Amendment. The impact of pretrial imprisonment on society is substantial. While awaiting their day in court, many people lose their jobs, creating a cycle of poverty that feeds into rising crime rates. Additionally, former AG Eric Holder claims pretrial inmates cost taxpayers $9 billion annually

Studies show the argument that cash bail keeps people from fleeing their hearings is wrong. For example, Washington DC ended cash bail in 1992, and 88% of their defendants appear in court and avoid new offenses. The Bail Reform Act of 1984 allows for pretrial detainment based on risk assessment. It's these considerations and not the income of the incarcerated that should inform our judicial pretrial system.

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