Bail Isn’t Supposed to Be a Punishment. Why Does the Media Keep Acting Like it Is?

The public’s perception of crime is often significantly out of alignment with the reality. This is caused, in part, by frequently sensationalist, decontextualized media coverage. Media Frame seeks to critique journalism on issues of policing and prisons, challenge the standard media formulas for crime coverage, and push media to radically rethink how they inform the public on matters of public safety.

A column this month in the Chicago Tribune by John Kass checked off most of the major anti-reform tropes to attack modest bail reform in Chicago. One trope in particular is worth highlighting and dissecting in its own right: the popular yet misguided idea that bail is supposed to be a punishment for a crime and the corollary that no or low bail is evidence a specific crime isn’t taken seriously by the state.  

The headline of Kass’s piece appeals to superficial outrage: “Father of teacher robbed in Lincoln Park questions $100 bond allowing alleged attacker to walk: ‘Is that all she’s worth to them?” Kass then writes that the arrestee, who allegedly “slammed” a woman to the ground and attempted to steal her phone, was permitted to “walk free on bond on a robbery charge. One hundred bucks, cheap at the price.”

The implication is clear: The attacker is “walking,” and the totality of this punishment is a $100 fine. Kass adds “on bond” to hedge, but the average reader would understandably come away from this column thinking the attacker is home free after paying a small fine. By not mentioning the relevant fact that the alleged attacker still faces years in prison, Kass misleads the reader by saying he is walking “free.”

Kass seems to be under the false impression that bail is supposed to be a form of punishment—that a high or low bond is evidence of how seriously the state takes an alleged crime. The courts impose high bail? They truly care about victims. Low bail? They’re coddling criminals. There’s one problem in this formula: The person the Chicago police arrested has yet to be convicted of anything. In the eyes of the law, he’s innocent, and Kass nor the victim’s family nor Cook Country has the right to punish him before he has been convicted, much less stood trial. 

“By framing the question of a $100 money bond as ‘all the victim is worth’ in the eyes of the court, Kass equates the young man’s bond with the consequence he should face should he be found guilty,” Chicago Community Bond Fund, a group dedicated to abolishing cash bail nationwide, wrote in its rebuke of the column. “The standard for punishing people in the United States is a conviction and not a mere arrest.”

Other media outlets also frequently imply bail is a reflection of how seriously the state takes an alleged transgression. CBS Chicago, as I noted in June, employed a similar tactic. In a report on the use of I-bonds, or bonds that don’t require the arrestee pay cash, anchor Irika Sargent said that people arrested that weekend by Chicago police for gun offenses “walked out of jail on bond, without having to pay a dime.” In a tweet that the outlet noted, Chicago Police Department spokesperson Anthony Guglielmi wrote: “Letting gun offenders out on I-Bonds shows there is absolutely no repercussion for carrying illegal guns In Chicago.”

“Absolutely no repercussion” omits the fact that those arrested could still face years, if not decades, in prison. Nowhere in the report does it state that the charges stand and the arrestee is still bound by law to show up to court. This gives the viewer the impression that bail, or the lack of bail, is the totality of the punishment. 

And with no “punishment,” police argue, crime will run rampant. A report from CBS New York gave John Miller, the deputy commissioner of intelligence and counterterrorism for the city police department, a soapbox—and no counterpoint—to criticize bail reform. Reporter Hazel Sanchez said Miller opposed reform “for eliminating incentive for criminals to stop breaking the law.” Miller apparently thinks years in prison after one has been convicted is not incentive enough to not break the law. Sanchez echoed this fearmongering later in the report, telling viewers, “The NYPD and the police union both say the no bail law will make it much more difficult to deter crime.”

Bail is supposed to be an incentive for those accused of crime to show up to their court date, not a crime deterrent or punishment. The crime deterrent and punishment element is the obscenely long sentences American courts still routinely hand out.

Beyond their professed concern for public safety, police have other interests in maintaining the bail system that the media fails to properly interrogate. First, when trying to extract favorable pleas from those arrested for crimes, regardless of their guilt or innocence, the police use the looming fear of lengthy pretrial jail sentences to extract quick plea deals. Studies show that poor people are far more likely to “plea out” just so they can go home rather than spend time in jail for weeks and sometimes months or years. Second, bail undermines the police’s ability to turn those they arrest into informants. It’s common for police to take a suspect facing pretrial detention and lessen or drop charges in exchange for their “cooperation” as an informant. According to an American Civil Liberties Union report from 2011, “With their freedom at stake, many people who are arrested may see ‘cooperation’ as the only means of avoiding incarceration.” By removing the specter of pretrial detention, the police gain significant leverage. Rather than examine these possible ulterior motives, or interview activists who may broach them, media reports about bail often take police talking points about safety at face value. 

If bail was meant to be punitive, then the whole concept of “innocent until proven guilty” would be rendered meaningless. None of those out on bond have, by definition, been convicted of anything. Police spokespeople and pundits like Kass may feel like those being allowed to “walk” are guilty, but that’s not enough to strip them of their freedom. In this country we have trials with evidence, designed to carry out due process, the sum result of which is supposed to render punishment when it’s determined that a person is guilty. The process to make sure someone appears in court does not, and should not, assume that responsibility. Reporters and columnists ought to remember this basic principle, and stop misleading the public by implying the mechanism to assure court appearance is interchangeable with due process.