I disagree. Cash bail is about holding someone's money hostage to secure their presence at court... the problem always was the violation of 8th amendment rights. By demanding excessive bail, the person couldn't possibly cough up the amount, which forced them to utilize bail bondsmen instead. Except that turns bail into a fine, because unlike true bail which is returned when they appear at court, bonds are retained by the bail bondsman.

Simply obeying the 8th amendment would have fixed everything, and so much better too.

In some cases, high bail was used because judges were pussies who refused to deny bail to those who were actual threats to the public (see this alot whenever you hear bullshit about some killer whose bail is set at $5 million or whatever). Other times, it was just the status quo, and judges were giving no real consideration to the problem.

The whole concept of pretrial detention is fraught with problems.

At least in Illinois, the theory is that now most defendants should be able to be free, or on house arrest, until their trial.

Illinois doesn't allow bondsmen, which, while it meant you got your bond back† it also meant that, unlike other states, you couldn't pay a smaller amount to a bondsman for him to get you out. So I imagine in Illinois at least, more people were stuck in pretrial due to (as you say) excessive bail.

One issue is that a lot of defendants have zero cash, or zero access to their cash. You can't pay your own bond. Someone has to pay your bond for you. You can't go to an ATM and get the money out. You can't access the Internet to sell your shares or take a loan against your real estate. These people are stuck in pretrial until their case is resolved, which can take over a decade in some instances.

I had a cellmate who was wrongfully arrested and had a $20K bond set. He was homeless. I proved the case was frivolous and sent him to court with the paperwork. The judge agreed, but gave the prosecution 60 days to respond. He reset the bail at $200. I offered to pay it, but instead he just asked to use my phone credit. He spent all day calling his homeless friends and over the next three days over a dozen of them walked to the jail and dropped off $10 and $20 bills until he had enough to leave.

If a judge sets excessive bail, which the vast majority do, then you can appeal it. It's usually immediately appealable. In most states this would be a 6-stage appellate process to exhaust your rights. Each level taking usually one to two years.

The conditions in county jails are vastly more punitive than even the harshest supermax prisons, generally. Absolutely abominable conditions. I remember one recent case where a homeless person was grabbed off the street for having a bag of white powder. He was put in pretrial detention. He pled guilty to possession of cocaine and took (IIRC) a 5-year prison sentence. Just before he was shipped out the lab results came back as negative for cocaine. The bag was powdered milk he had obtained from a food bank. The judge asked why he pled guilty and he simply pointed out the conditions of the jail were so harsh that he couldn't take it. Pretrial detention vastly increases both the conviction rate (you're more likely to plead guilty even if the charges are wrong) and also the length of sentence (people dressed in suits coming from the street just look less criminal and are sentenced a lot lighter, compared to people in Hamburgler outfits coming from jail).

I think the writing is on the wall, though. There has been an absolute ton of hardcore litigation in the last decade on the legality of bail, and the intermediate appellate courts are striking it down. I think if SCOTUS had a slightly different makeup, then we'd see bail abolished at the federal constitutional level right now. The reason for the new statutes in Illinois and other states, counties and cities is that they are getting ahead of the problem. Better to fix it now than get sued down the road.

† You'd rarely get it back. Often the judge would impose a fine, if you were sentenced, that would swallow your bond. One bonus, though, is that you could usually make your bond do "double-duty" by using it to bail out, but at the same time signing it over to an attorney to pay his costs. When the case reaches disposition the bond would go directly to the lawyer.

>I think the writing is on the wall, though. There has been an absolute ton of hardcore litigation in the last decade on the legality of bail, and the intermediate appellate courts are striking it down.

I think this bodes ill, myself. I expect a slowly-but-steadily rising culture that just skips out on trials altogether, because there are no immediate (or even longterm) costs to doing so. Though you might argue that in such cases judges will just issue bench warrants, this too will stop when everyone involved becomes too apathetic and demoralized to do so.

Bail would be fine if it were carefully set such that the person can always scrape and afford it, enough that they wouldn't risk losing it but still low enough that they can gather it. Is there any reason at all that your anecdote had the judge set it to $20k? That's ridiculous. And for a homeless man as well... that's constructive bail denial. That judge should be censured and forced to retire.

Just once I would like to see a policy adjustment that wasn't absurd overcompensation. I turn 51 in a few months so I've got maybe 2 decades left but I don't think it's going to happen.

One issue is that most bails hearings I saw (and I sat through thousands) in Illinois were basically one-minute affairs with literally zero evidence presented on the person's ability to pay. I've heard that bond hearings in Illinois are now significantly longer and more evidence-based.

The judges were just making emotional decisions based on the heinousness of the crime, the ethnicity of the person, whether their family was in the room supporting them, etc. And the outcome was essentially random and arbitrary.

The cellmate who had the $20K bail set was a completely arbitrary number. It was a victimless offense to do with paperwork. All I did was file FOIA requests to prove no offense had been committed. I was infuriated that the judge reset bail to $200 knowing the guy was clearly innocent, and also knowing he was homeless.

Judges were ordered again and again and again in Illinois to run their bond hearings in a fairer manner, but it never happened.

So we're now in the situation we're in. A lot of detainees are on house arrest, and this is better for their mental health, but also presents enormous problems of their own. If you are ordered released on house arrest, but you have nowhere to go, then you get stuck. If you are on house arrest, often you can't get a job, so how do you pay rent and eat? Often if you're on house arrest the judge won't allow you to even leave to obtain groceries or medicine, which is a problem.

These are hard problems. I don't want to be the one trying to solve them because there is no way to make everyone happy.