Jun 28, 2020

Bail reforms present a historic as well as a challenging tool. Bail is an instrument which permits courts to minimise the intervention on defendant’s liberty and at the same time assure the appearance of the offender with the help of a bond. Itis one of the mechanism which is used to administer the pre-trial process. This instrument is used by the judges in order to ensure that defendants are in a way detained prior to their trial. The application of money bail in many cases is used to deter the indigent defendants from leaving jail while their cases are pending. This has in many cases resulted into an indefeasible status where many people are jailed unnecessarily thus, raising the level of economic status also which is prevalent in defining pre-trial outcomes.

There is a phase of unjustified inequalities brewing up due to arbitrary imposition of money bail. Two otherwise similarly situated pre-trial detainee can have to face different repercussions based on whether they can afford to pay a cash bond or not.[1]Being in a period of jailed pre-trial can also under cut defendant’s ability to mount an effective defence. Improper use of money bail can accelerate unnecessarily high rates of incarceration and in a way deepen the disparities based on wealth and race throughout the criminal justice system. This particular provision of paying cash bonds creating the disparity also violates the constitutional provisions wherein vision of M.K. Gandhi at the time of drafting of the constitution was to cater the needs of poor and weaker sections of the society who are standing last in the queue.

Understanding the implications of Bail

The court must decide whether the person can be unconditionally released pending trial, release should be made subject to a condition or combination of conditions. The bone of contention is that jailing people on the cornerstone of wealth based distinction is violative of constitutional provisions and the well-established principles of fairness and equity. A negative consequence of unnecessary jailing is resulted which intensely puts the burden of cost on criminal justice system.

Costand Benefit of pre-trial detention and use of Bail system

The direct costs associated to keep the pre-trial detainees in jail is non-trivial.The direct costs of pre-trial detention are sizable but it is also important to consider that it also comes with its own cost. In a case when defendant fails to appear the court needs to allocate resources to resolve the resulting warrants. Moreover the pre-trial release can open the door for the offender to commit another crime too which in turn depends on facts and circumstances of the case. Attempts have been made to estimate the social value of a decision to release rather than detain a defendant. Evaluating the direct costs associated with jail avoided, increased likelihood of crime pre-trial, decreased likelihood of future crime and increased likelihood of failures to appear as a result of pre-trial release[2].With each of the defendant released, these costs and benefits tends to balance out social benefit.

[1] See,e.g., Rakesh Kochhar & Richard Fry, Pew Research Ctr.,Wealth Inequality has Widened Along Racial, End of Great Recession: Ethnic lines, Dec. 12, 2014.

[2] Dobbie,Goldin, and Yang (2018).



Criminal justice system witnesses bail as a growing part, more and more defendants are using commercial bonds as a way to secure their release. There are however extensive costs on the justice system. Without having been convicted of a crime nearly half a million people are in jail. The impact of monetary bail falls disproportionately on the low income category people who cannot afford it and thus often remain in jail for extended period of time. Furthermore, there is an increment in the likelihood of conviction due to the assignment of financial bail thus, extrapolating guilty pleas and the cost is incur on both individuals and the society. Instead of monetary bail a risk assessment method needs to be adapted while taking into account the factors of defendant’s potential public safety risk and the risk of appearance of defendant in the court of Law, however bail is a rule and jail is an exception and for following this constitutional rule wealth based distinction should be eliminated.