The current cash bail system works in a way that punishes poverty. In Robinson v. California, the Supreme Court held that it is unconstitutional under the Eighth Amendment to punish an individual for a status or condition. Poverty is a status. The cash bail system is unconstitutional under Robinson and the Eighth Amendment because it punishes the status of poverty. Similar to drug addiction, poverty “may be contracted innocently or involuntarily or it might even take hold from the moment of a person’s birth.” Kalief Browder had no control over his family’s financial position. Yet, this financial position kept him locked away for more than 1000 days. An affluent individual in Browder’s position would have been able to afford the $3000 cash bail, and thus, would have been released from pre-trial custody. Because of this reality, the current bail system functions in a way that punishes defendants on the basis of their economic status. This Note demonstrates that the current cash bail system criminalizes the economic status of poverty. Because of this, the criminal cash bail system violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Throughout this Note, the terms “bail” and “bond” are used interchangeably. Part I of this Note examines the Eighth Amendment, as well as the current structure and statistics surrounding the United States criminal bond system. Part II examines Robinson v. California, Powell v. Texas, and the effect of these two decisions on Eighth Amendment jurisprudence. Finally, Part III analyzes the constitutionality of the criminal cash bail system under Robinson.
Punishing Poverty: Robinson & the Criminal Cash Bond System,
25 Wash. & Lee J. Civ. Rts. & Soc. Just. 315
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol25/iss1/10