Should people be stuck in jail because they can’t afford bail? Some are aiming to change Oregon’s system, so no payment would be required as a precondition to be released from jail.

When a judge believes someone is dangerous in Oregon, they don’t make them eligible for bail. But if a suspect is not believed to be dangerous, they may post cash to be released.

The argument is bail is unfair to the poor. It has a way of punishing the poor before their case is even resolved. If bail is set high, a richer person can pay and doesn’t have to stay in jail. If bail is set low, a poor person may still be in jail. When a person is in jail awaiting trial, they may lose their job. They may lose their home. Their family may fracture. A poor person may also have more incentive to plead guilty to a lesser charge just so they can can get out of jail.

A representative from Oregon’s Criminal Justice Commission briefed members of Deschutes County’s legal system on the debate last week. Bail’s origins date back to the Magna Carta, the English document that is the source of so many concepts of the law in the United States. Oregon’s law regarding bail was largely copied from the Indiana Constitution. Despite changes to Oregon’s system, it continues to be challenged in court as violating a defendant’s due process rights. Oregon is not the only state deliberating cash bail. California, for instance, passed legislation in 2018 to get rid of cash bail.

Kalief Brown’s story is the one frequently used to illustrate how cash bail can sabotage lives. When he was 16, he was accused of stealing a backpack in 2010 in New York City. A judge set his bail at $3,000. His family couldn’t afford that. He spent three years in jail waiting for trial, some of it in solitary confinement. His case was eventually dropped. He committed suicide in 2015.

What could replace cash bail? People might just be released. More effort could be made to stay in contact with them and encourage them to make their court date. And risk assessment tools can be used to evaluate a person’s history to weigh how likely an individual is to not show up in court. Those tools are tricky to get right and have been criticized as biased.

The first step in Oregon is to get better data. Oregon’s Criminal Justice Commission says it needs better information about when suspects fail to appear in court. There’s also concern about victims’ rights. How will those be factored in? Changes to the cash bail system in Oregon is most likely coming. It may be driven by court decisions. It may be driven by the Legislature. It may be driven by a ballot measure. If you have thoughts about it, the best way to influence what Oregon does is likely by contacting your legislator.