A person accused of shoplifting sits in jail for six months awaiting trial because they cannot afford $500 bail. They lose their job, their apartment, and eventually plead guilty just to get out, even though they maintain innocence. Another person charged with a serious assault is released on bail because they can afford the $50,000 amount, returning to the community where their alleged victim lives in fear. Someone deemed low-risk by an algorithm is released and reoffends. Another flagged as high-risk by the same algorithm spends months detained before charges are dropped. The bail system stands at the intersection of competing principles: presumption of innocence until proven guilty, community safety, ensuring accused people appear for trial, and the reality that wealth determines who waits for trial in freedom versus confinement. Whether current systems strike the right balance or fundamentally fail remains one of criminal justice's most contested questions.
The Case for Bail Reform and Presumption of Liberty
Advocates argue that incarcerating people who have been convicted of nothing violates fundamental justice principles. Pretrial detention is punishment before guilt is established. Those held pretrial lose jobs, housing, and custody of children. They cannot assist in their own defense, meet with lawyers adequately, or gather evidence. Studies consistently show that detention itself predicts worse outcomes: people held pretrial are more likely to be convicted, more likely to receive custodial sentences, and receive longer sentences than those released on similar charges. From this view, cash bail creates a two-tiered system where wealthy people buy freedom while poor people are punished for poverty. Someone dangerous but wealthy gets released while someone safe but poor stays incarcerated. The solution is eliminating cash bail, using risk assessment tools to determine who poses genuine danger or flight risk, and releasing everyone else with conditions. Countries and jurisdictions that have moved away from cash bail demonstrate that most people appear for court and do not reoffend while on release. The presumption should be liberty, with detention reserved only for clear threats when no conditions can manage risk.
The Case for Detention When Risk Warrants
Others argue that bail and detention exist to protect public safety and ensure people appear for trial, both legitimate state interests. Some accused persons are dangerous. Releasing them creates real risk to victims and communities. Others will flee if given opportunity, particularly those facing serious charges. From this perspective, the problem with pretrial detention is not the concept but its application. Bail should be set based on risk, not ability to pay. Those who pose danger or flight risk should be detained regardless of wealth. Those who pose minimal risk should be released with appropriate conditions. Risk assessment tools can help make these decisions more objective, though they require careful design to avoid encoding existing biases. Moreover, bail reform in some jurisdictions has led to people committing serious offenses while on release, undermining public confidence in the justice system. While presumption of innocence is important, so is preventing additional harm while cases proceed. The solution is better risk assessment, not eliminating detention for those who genuinely pose threats.
The Algorithmic Risk Problem
Risk assessment tools promise to make bail decisions more objective and less dependent on wealth, yet they introduce new problems. Algorithms trained on historical data may perpetuate existing racial and socioeconomic biases. They predict group-level risk, not individual behavior, meaning they will be wrong about many people classified as high or low risk. Factors that predict risk often correlate with poverty or marginalization: unemployment, unstable housing, prior system contact. Using these factors to determine detention may simply encode disadvantage in algorithmic form. Moreover, what counts as acceptable risk remains subjective. Should someone with twenty percent chance of reoffending be detained while ninety percent who would not offend are also held? Different stakeholders have different risk tolerances, with victims and fearful communities often demanding higher detention thresholds than civil liberties advocates.
The Question
If wealth determines who waits for trial in freedom versus detention, does that violate equality before the law and presumption of innocence, or does it simply reflect that those with resources can access bail that is available to everyone? Can risk assessment tools make detention decisions more fair, or do they simply replace human bias with algorithmic bias while appearing more objective? And when released individuals reoffend, creating real victims, versus detained individuals lose everything while legally innocent, which harm does the system prioritize, and who decides what risk level is acceptable?