So often when I’ve represented people of color in the criminal justice system, they complain that they’ve been denied bail “just because I’m black.” (Or another color) There certainly is racism built into the criminal justice system at all stages, but what about bail and people of color? Why does it seem they remain in custody long after white people have been released? I’ve worked in the criminal justice system for over 30 years. Here are some reasons why.
— One of the purposes of setting bail is to ensure public safety. If the defendant is charged with being a serial rapist or serial killer, chances are—whatever color they are—a judge is not going to set low bail (or no bail). If the accused gets out, there’s a chance they’ll repeat their crimes and rape or kill more people. Also, if a gun or other violence is alleged to have been part of the crime, the accused may have high bail set. None of us like criminals with guns out on the streets.
— The second purpose of setting bail is to make sure the accused returns to court. If there is a history of warrants for the accused’s arrest because he failed to show up for previous court appearances anywhere in the criminal justice system . . . it’s not a tough choice for a judge. If the accused doesn’t have close or long-term ties to the community, it may indicated he would flee if released on lower bail. 
— In Minnesota, the law says the judge must assume the alleged facts in the case are true—for the purpose of determining bail. There is no presumed innocent until proven guilty standard when setting bail.
— What impact does all of the above have on people of color? If you consider that a certain amount of racism is built into the system of who is arrested and charged with crimes—people of color have a much higher chance of getting involved in the criminal justice system. Then, with the presumption that the alleged crime is true, people of color will be judged more harshly than others—simply because they end up in the criminal justice system more often.
— Many people of color are poor. They don’t have long-term ownership of homes or even renting. They don’t have a long history of a job. They don’t have a bank account, credit cards, home loans, and all the other stuff that keeps most of us anchored to our neighborhoods. (Even if we don’t want to be!)
— The upshot of all these factors means that people of color usually have higher bail set when they get into the criminal justice system.
Do you have an experience like this? (You don’t have to tell all the details!!)
