The Eighth Amendment to the United States Constitution clearly states: “Excessive bail shall not be required.” This powerful phrase was written to ensure that the justice system doesn’t punish people before they’ve even been found guilty of a crime. But all too often it does, through press releases, through traumatic events around arrest, and a million things done in the name of “justice.”
And in practice, excessive bail remains a pervasive and devastating reality, especially for poor and marginalized communities.
What Is Bail Supposed to Do?
Bail is meant to guarantee that someone charged with a crime will return to court. It’s not supposed to be a punishment or a tool to keep people in jail simply because they can’t afford to pay. Yet across the country, judges frequently set bail amounts that are far beyond a person’s financial reach, effectively turning jail into a debtor’s prison.
When Bail Becomes Excessive
Imagine being charged with a low-level offense; maybe it’s trespassing, petty theft, or missing a court date, and then you’re slapped with a $25,000 bail.
If you’re wealthy, you will likely pay it, go home, and hire an expensive lawyer to prepare your defense. But if you’re poor? Get comfortable, Buckaroo. Because you will sit in a cell for weeks or even months. The crime is the same, but the outcome depends entirely on your income.
This practice disproportionately affects Black and brown communities, people with mental health challenges, and those living in poverty. It disrupts jobs, families, and lives, long before a case is even heard in court. In some cases, people plead guilty to crimes they didn’t commit just to get out of jail faster than waiting for a trial.
That’s not justice; that’s coercion.
For that matter, a Federal Judge recently found plea bargains to be unconstitutional. The system knows better and does it anyway because voters don’t know better. That’s a problem we desperately need to fix.
The Legal Argument
The U.S. Supreme Court has made clear that bail must be set with consideration for a person’s ability to pay. In Stack v. Boyle (1951), the Court ruled that, “bail set at a figure higher than an amount reasonably calculated to fulfill [its] purpose is ‘excessive’ under the Eighth Amendment.”
When judges set arbitrary, unaffordable bail amounts, they’re not upholding public safety or creating deterrents; they’re violating the Constitution to make headlines for their reelection campaign.
Reform Is Not Just Possible—It’s Necessary
Thankfully, many jurisdictions are rethinking cash bail and exploring alternatives like pretrial services, electronic monitoring, and text reminders for court appearances. But meaningful reform means we must first confront the underlying reality: setting excessive bail is unconstitutional and it should not happen at all. The only purpose it serves is to undermine the presumption of innocence and criminalize poverty.
True justice demands a system where your freedom doesn’t depend on your wallet and where constitutional rights aren’t reserved for the rich.
Want to learn more or get involved? Support bail reform campaigns in your area, donate to local bail funds, and contact your elected officials to demand an end to unconstitutional bail practices. Check out BailProject.org for more details.
