Financial Bail: How It Distorts Legal Fairness


A healthy legal system is one that carries out regular reforms to reflect existing values of the society. Over the last decade, a major issue plaguing the criminal justice system has been the high population of incarcerated individuals, which has led to an overpopulation of the jails and prisons. This is in sharp contrast to countries like Sweden and Netherlands that are closing their prisons for opposite reasons. The fact is that for virtually every year from 1993 to 2012, crime rate has been falling. So, why is the financial bail in the criminal justice systemincarcerated population increasing then?Among a myriad of reasons, perhaps the most plausible is the number of outdated practices that put more people in jail, while the rate of the clearance remains fairly steady. One of these outdated practices generating a lot of discourse is financial bail.

Financial Bail

Financial bail refers to the practice of courts temporarily holding onto a deposit of money or property as collateral. This is to ensure that the defendant will return when trial commences to claim their assets, and guard against the possibility of the defendant being a flight risk. As good as the practice appears on paper, in the real world, most suspects of crimes in our society are from the lowest rung of society’s economic ladder. Therefore, the indigent criminal defendants often do not have enough to meet the financial bail conditions. Consequently, they stay in jail while they await their trial date. An occurrence that shouldn’t be.

Financial Bail and Penurious Criminal Defendants

The stats point at that any given time, around 450,000 inmates in US jails and prisons have not yet been convicted of a crime. It is substantial. Even more telling is that 75 percent of this number awaiting trial committed offenses that, while technically criminal, are nonviolent in nature: For example, drug or property crimes. This distinction is important because under normal circumstances, individuals who committed nonviolent crimes are not considered as flight risks or people who are a danger to public safety. Realistically, this is the bottom line or the reason behind financial bail. Therefore, the reason why they remain in jail longer than they should before trial is only because they are unable to afford bail, whose purpose by the way is already defeated.

Who Qualifies for Financial Bail in Florida

Even then, who qualifies for financial bail in Florida is solely up to the discretion of the court. Quite a number of factors, some itemized below, are considered when determining bail:

  1. The nature of and circumstances surrounding the crime
  2. The type and severity of the evidence which the prosecution levies against the defendant
  3. The defendant’s employment history, financial resources, mental health, familial ties, and connection with the community within the area
  4. The past and present defendant behavior
    1. Whether the defendant has any past convictions
    2. Whether the defendant has been a flight risk in the past
    3. The conduct of the defendant at previous court proceedings, if any
  5. The probability and extent to which the defendant poses a dangerous threat to the community
  6. Whether the defendant poses a threat of intimidation or violence to victims or witnesses involved in the defendant’s criminal proceeding
  7. Whether the court is of the opinion that defendant will likely perpetrate another offense if he is given bail based on his or her own recognizance