If your bail is completely unaffordable, is it ‘excessive’?

The Eighth Amendment to the U.S. Constitution prohibits “excessive bail.” Over time, courts have made numerous rulings on what constitutes “excessive,” but our country still finds itself in the midst of a bail crisis.

By some estimates, as many as 70 percent of that jail population in the United States are behind bars because they can’t afford their bail. We hold more people for this reason than most countries’ entire incarcerate rate. Pretrial detention accounts for nearly all of the growth in our jail population. The average bail for a felony charge is about $10,000, but about 44 percent of Americans say they would struggle to come up with $400 in an emergency.

Keep in mind: These are people who have not been convicted of any crime.

The bail crisis has resulted in some states reconsidering what counts as excessive bail. You may have heard recently about a 64-year-old man in San Francisco who was ordered to pay $350,000 in bail — an amount he couldn’t possibly raise. He was charged with robbery, burglary and elder abuse after allegedly stealing $5 and a bottle of cologne from a neighbor.

His public defender appealed the bail decision and won a landmark victory. Not only did the appeals court find that his bail was unfair and excessive, but it also ruled that judges must consider a defendant’s ability to pay when setting bail amounts. In the past, the judges had been using a fixed bail schedule based only on the offense charged and the defendant’s criminal history.

In this man’s case, an individualized hearing was held in which the defendant’s ability to pay was considered, along with non-monetary alternatives to jail. The prosecutor argued that the defendant was a potential danger to the public and that bail should therefore be denied.

The judge ruled in favor of the defendant, but still ordered him to be fitted with an ankle monitor, to undergo drug and alcohol treatment, and to remain in a residential treatment facility around the clock. He will also have to submit to searches by probation officers and has been ordered to stay away from his alleged victim. The conditions for his release still seem harsh, but at least the defendant is in treatment rather than behind bars.

Here in Tennessee, people charged with any crime but murder are entitled to reasonable bail. The defendant’s financial condition is one factor judges are expected to consider when setting bail amounts. Nevertheless, we still see bail amounts so high that the defendant cannot possibly afford them. Do you think unaffordable bail is excessive?