Stopped? How bail determines your experience with our justice system, by Bonnie Jean Feldkamp

I was 19 when a car turned left in front of me without looking and I drove into it. First responders put me on a stretcher and loaded me into an ambulance. The policeman on site asked me for my license and my registration. The contents of my purse had spilled onto the back seat of my dented Buick Somerset on impact. I couldn’t produce them.

Six years later, I was a new mom and was arrested with my baby in the car. Turns out there was a warrant out there for driving without a license. All those years ago a summons was issued and I did not appear in court. I had no idea. I could have gone to jail that day, but luckily for me, I didn’t.

This is the memory that comes to mind in conversations about bail reform. States like California, New Jersey, and Illinois are eliminating or heavily reforming their pretrial processes. Meanwhile, Kentucky lawmakers have proposed a bill to abolish charitable bail assistance from organizations like The Bail Project whose goal is to restore the presumption of innocence, bring together families and challenge a system that criminalizes race and poverty.

At the end of the line ? Bail penalizes the poor.


Bail is not a punishment, a determination of guilt, or a fine. It exists as an incentive to return to court. Bail is set taking into account the seriousness of the alleged crime, the accused’s flight risk and the safety of the community. A judge can suspend bail if there is concern for public safety or set no bail at all and let the person leave on their own. But what most people forget is that bail is set before any evidence or defense is ever presented in a criminal case. It is decided after the initial arrest. But whether you can afford this bond remains a determining factor in your experience with our legal system.

Those who cannot afford it sit in jail awaiting their day in court. We are not talking about hours; we are talking about weeks, even months. During this time, they lose their jobs, their homes and even their children. The pretrial processes of many states push indigent citizens deeper into poverty.


A judge asks if a defendant can afford a lawyer, but the answer to this question does not prompt the court to assess a person’s ability to pay bail. Bail remains a luxury reserved for those privileged enough to afford due process. What is supposed to be a constitutional right to due process under the 14th Amendment, a speedy trial under the Sixth Amendment, and without excessive bail, fines, fees, or abuse under the Eighth Amendment is currently a privilege.

“Excessive” is relative to wealth, and if someone is in jail before trial not because they’re considered a threat to public safety but because they can’t afford bail, I’d say the amount requested is excessive.

In 1964, Attorney General Robert F. Kennedy testified before Congress that the “problem, simply stated, is this: The rich man and the poor man do not receive equal justice in our courts. this is no longer evident except in matters of bail…bail has become a vehicle for systematic injustice.”

That was 58 years ago, and we’re still there.

The cop who pulled me over didn’t pull me over. Instead, he said something about me driving a “nice car” and that he knew the neighborhood listed on my current license was a “good” neighborhood. I was able to drive home and hire a lawyer before going to court. What if I hadn’t had a nice car? What if I was struggling when he shot me? What if I wasn’t white? Would he have been so nice? would I have been arrested? I shudder to think of what would have happened to my daughter that day if we hadn’t been able to drive home.

Too many people in this country don’t have to ask the question. They experienced the horror of landing in prison for minor offences. We need to have meaningful bail reform. We need to fix the pre-trial processes that make organizations like The Bail Project a necessary palliative to the failures of our justice system.

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Photo credit: Falkenpost on Pixabay