A Right to Liberty: Resources for Challenging the Detention of Children

The use of cash bail in the criminal legal system—as one option of conditional release—was established for the sole purpose of ensuring the accused’s presence in court. However, when the bail amount is set at a figure higher than the amount reasonably calculated to fulfill this purpose, it is deemed excessive under the Eighth Amendment. The United States Supreme Court has determined factors that the court must consider when determining bail, including a consideration of the accused’s “financial condition.” It is when bail is set without consideration of a financial ability to pay that cash “bail has become a vehicle for systemic injustice,” resulting in thousands of persons being kept in jail for weeks or months following arrest—though not yet proven guilty—only because “they cannot afford to pay for their freedom.”