There is no greater defining example of unfairness than how people are released on bail. The wealthy and middle class easily afford bail and are released immediately. However, the poor have a great deal of problems posting bail or securing a bond. The impact on people who cannot secure pre-trial release is devastating.
What is "Bail" and Why is it Required in Misdemeanor Cases?
The purpose of bail is to provide a financial penalty for not appearing in court on your court date. Presumably, that penalty can be used to secure the attendance of the person charged because either they do not want to lose the money posted, or the bond company (who took a percentage as profit) does not wish to lose their money.
For felonies with large amounts of money involved, maybe this makes more sense. Most people cannot afford to lose or have family members lose their property or significant sums of money.
For misdemeanor cases, it makes little sense to require a financial penalty to secure court attendance. No one will convince me that $1000 will cause a person to attend court after a DUI arrest. It's meaningless to the person who can afford to post it. In fact, suspending an individual's license for failing to appear is far more impactful than forfeiting $1000.
However, to the indigent person who cannot afford $1000, the money means everything. For every day that person remains in custody, they become more and more marginalized. Very often their worldly possessions are completely lost during even a short stay in jail. Many people lose their hourly jobs when they miss even one unexcused day of work. For most people living day to day (from a financial position), it takes only a few days before all is lost.
Rational Bad Decisions:
The result for the poor is the decision to plead guilty to get out of jail or to remain in jail until their trial date. Even with speedy trial demands, it can take months to get a trial date. As a result, most people choose to plead guilty to get released. However, that plays right into the prosecutor's hands. Without any investigation for defenses, people plead guilty to everything to which they are charged to be released on probation. The result is the indigent person is completely denied their right to challenge the evidence in their cases, even when they have a public defender. That means further marginalization, fine payments, probation fees, and the collateral consequences of being a convicted criminal, such as future problems seeking employment.
Additionally, the indigent person is at greater risk of being re-incarcerated by violating probation. Many of them don't have transportation to probation appointments, counseling, and community service, as well as money for fines. In my experience, the poor are jailed for probation violations far more often than the middle class and wealthy.
A Partial Solution:
There is no answer to the fact we have more fortunate people in a capitalist society. That being said, equal protection of our laws should be the standard. Making impoverished people pay bail creates unequal protection. One solution being implemented in New York is for Public Defenders to post “bail” for their clients in misdemeanor cases, where no actual money is exchanged. The standard for public defender bail is that the person must check in regularly with their attorney. If so, they remain on bail. If not, the bail is revoked. They have found their clients appear in court at a far higher percentage than those who have posted traditional bond.
In my experience as both a private attorney and when I did court-appointed work, the key indicator of whether a person attended court was their interest in their case and their contact with me. The New York Public Defenders seem to understand the same reality.
Prosecutors hate the idea of public defender bail because they lose their "easy" guilty pleas. However, we in society need to level the playing field between the state (that can jail you until you plead guilty) and the accused. We currently have a worse system than Jim Crow. It's separate and intentionally unequal, with no illusion of an attempt at being equal.