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Rethinking Bail Reform in the U.S.

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As our nation struggles with mass incarceration, it is important to note that more than half of the prisoners being held in U.S. jails have not been convicted of a crime. A professor at the University of Cincinnati Blue Ash College says the current bail system is to blame. In response, she is co-leading research of the system that is gaining attention.

Wendy Calaway is a practicing attorney and assistant professor of criminal justice at UC Blue Ash College. She has years of experience defending clients who are often held behind bars while awaiting trial because they could not post bail. Calaway is co-leading the research with Jennifer Kinsley, a law professor at Northern Kentucky University.

Legal experts are taking notice. The professors’ findings were published last year in the prominent University of Richmond Law Review, and Calaway helped found the Hamilton County Bail Reform Committee to continue working on the issue.

Setting bail is the common practice that occurs when a person is charged with committing a crime. In most cases, they must pay an amount set by a judge if they are to be released from prison before their trial. The bail can vary depending on the seriousness of the crime. For many, the amount is more than they can pay, so they have to await trial behind bars.

The research by Calaway and Kinsley shows that on any given day, at least 60 percent of the people in the Hamilton County Detention Center are there because they couldn’t post bail. This is also true in cities across the U.S. This contributes to our nation having the highest incarceration rate in the world according to the World Prison Brief, with 655 of every 100,000 residents behind bars.

“This is a financial burden on our community,” says Calaway. “We’re holding people behind bars who have not been convicted of any crime, simply because they are too poor to pay their way out.”

She adds that research shows people are just as likely to show up to trial, whether they post bail or not. On the other hand, people kept behind bars until their trial are more likely to return to jail in the future.

“You look at the domino effect on our society. It’s costing us lives and money. There is a major problem with the way we’re doing things,” says Calaway. “The system should be more equitable; there should be more common sense. Most of the people who are funneled through our criminal justice system are poor.”

Calaway recommends caution for attorneys considering a class-action lawsuit against the current bail system. She encourages everyone to hold off until there is an alternative model that could realistically be implemented. Ideally, stakeholders in the criminal justice system need to come together and correct this problem.

Courts across the country have made it clear that poverty is not a crime and people should not be held in jail simply because they cannot afford to pay their way out. Calaway recommends presumptive pretrial release for those charged with non-violent offenses and a requirement that the court consider the defendant’s ability to pay when setting a pretrial bond. Our jails are overcrowded because we are paying to hold people who have not been convicted of a crime. Calaway is hopeful that by bringing attention to this problem, a new system can be negotiated that better protects our system’s promise of “innocent until proven guilty,” while saving the taxpayers money in the process.

About UC Blue Ash College