[Pinoy Criminology] Unlike Jinggoy, others rot in jail because they can’t afford bail

Senator Jinggoy Estrada was charged with graft and immediately posted bail amounting to ₱90,000. For a long-time senator and member of one of the country’s most powerful political clans, ₱90,000 is hardly more than a minor inconvenience. The amount could be produced almost instantly. He did not spend a single night in detention. He walked out of court and continued his life while awaiting trial.

(Estrada is facing another case, plunder, which will be non-bailable if and when the Sandiganbayan issues a warrant of arrest. READ: Jinggoy Estrada got away with plunder twice. Will there be a 3rd time?)

Yet somewhere in the crowded jails of Metro Manila, hundreds of Persons Deprived of Liberty remain behind bars for offenses far less serious. Some are charged with petty theft. Others face minor drug cases. Many have bail amounts of ₱10,000 or less. For them, however, even ₱1,000 might as well be a million pesos. They cannot post bail. They remain in jail for six months, one year, two years, or even longer while waiting for their day in court.

Many of these detainees eventually leave jail not because they were found guilty, but because they have already served enough time to satisfy whatever sentence they might have received had they been convicted. They are released after years of uncertainty, stigma, and suffering. In effect, they have already been punished before the court has even determined whether they committed a crime. The constitutional presumption of innocence becomes meaningless when detention itself becomes the punishment.

Such is the tragedy of the financial bail system in the Philippines. It was designed to ensure appearance in court. In practice, it often serves as a mechanism that separates the rich from the poor. Freedom becomes a commodity that can be purchased. Justice becomes dependent not on risk or dangerousness but on the contents of one’s wallet.

This reality is visible in almost every jail in the country. The Bureau of Jail Management and Penology has long struggled with congestion levels exceeding capacity. In many urban jails, occupancy rates have historically reached several hundred percent above intended capacity. My own work inside Philippine jails has repeatedly shown that a substantial proportion of jail populations consist of pretrial detainees. These are individuals who have not been convicted but are incarcerated while awaiting trial. Many remain there because they cannot afford bail.

Overcharging to keep suspects in jail

The consequences are devastating. Research consistently demonstrates that pretrial detention increases the likelihood of conviction, increases the probability of accepting unfavorable plea arrangements, disrupts employment, weakens family relationships, and contributes to future criminal behavior. Scholars such as Christopher Lowenkamp and his colleagues have shown that even short periods of unnecessary detention can increase recidivism. The detention itself becomes criminogenic.

The problem becomes even worse because financial bail interacts with another pathology in the Philippine criminal justice system: overcharging. Police officers and prosecutors understand that if an accused person is charged with a bailable offense, there is always a possibility of release. If the goal is to ensure detention while the case is pending, the temptation is to elevate the charge.

A killing that may properly be classified as homicide suddenly becomes murder. A drug possession case is transformed into drug selling. Circumstances are interpreted in ways that maximize detention rather than pursue justice. The accused is then forced to fight for years against charges carrying severe penalties while confined in overcrowded jails.

Conflict theory helps explain this phenomenon. The criminal justice system does not always operate as a neutral mechanism. It often reflects existing inequalities in society. Those with political influence, economic resources, and access to elite legal representation are better positioned to secure release. Those without resources experience the harshest consequences of detention. The law may be written equally, but its application often produces unequal outcomes.

Most important stage: Bail hearing

This is why the most important stage in the Philippine criminal process is frequently not the trial itself. It is the bail hearing. Whether an accused person is eventually convicted or acquitted may occur years later. The immediate question is whether the accused remains free or spends years in jail awaiting that determination. If a person cannot obtain release, then punishment has already begun regardless of eventual innocence.

Ironically, the current system often releases the very people who pose the greatest risks while detaining those who pose little danger. A poor father accused of stealing food may spend months in jail because he cannot raise ₱5,000. Meanwhile, a politically connected official accused of plundering millions may secure release within hours because he can easily post bail.

The famous case of a man jailed for stealing corned beef worth only a few pesos illustrates this absurdity. The value of the property involved was insignificant. Yet the machinery of the criminal justice system mobilized its full force against him. Compare that treatment with the treatment often received by individuals accused of large-scale corruption, whose actions may deprive entire communities of schools, roads, hospitals, and flood-control projects. The contrast is impossible to ignore.

The answer is not to abolish pretrial detention entirely. Some individuals genuinely pose risks. Some may intimidate witnesses. Others may flee. A few may continue engaging in criminal conduct while their cases are pending. The answer, however, is to base detention decisions on risk rather than wealth.

Many jurisdictions around the world have begun replacing purely financial bail systems with evidence-based public safety assessments. These assessments examine criminal history, prior failures to appear, patterns of offending, community ties, and indicators of dangerousness. The central question is not whether the accused can pay. The central question is whether the accused presents a genuine threat to public safety or to the integrity of the judicial process.

Individuals who pose minimal risk should be released on their own recognizance. They can be required to report regularly to barangay officials, probation-style officers, or community supervision programs. They can perform community service while awaiting trial. Electronic monitoring can be considered in appropriate cases. There are many alternatives to incarceration that protect public safety without destroying lives.

Focus on dangerousness, not wealth

Conversely, preventive detention should be reserved for those who demonstrably present substantial risks. Such detention must be justified through evidence rather than assumptions. It must also be subject to regular judicial review. Circumstances change. Risks decline. Continued detention should never become automatic.

Under such a system, the focus shifts from wealth to dangerousness. The poor are no longer jailed simply because they are poor. The wealthy are no longer released simply because they are wealthy.

The irony is striking. A man accused of stealing a can of sardines may spend months or years behind bars. A powerful politician accused of corruption involving millions can walk free after posting an amount that represents a fraction of his daily resources. If there is anything fundamentally wrong with the Philippine bail system, it is this contradiction.

Justice should never be determined by the size of one’s bank account. Liberty should never be reserved for those who can afford it. The purpose of bail is to ensure appearance in court, not to create two separate systems of justice—one for the rich and another for the poor.

The Philippines urgently needs bail reform. We need a system that measures risk rather than wealth, that protects public safety without punishing poverty, and that respects the constitutional presumption of innocence. Until that happens, our jails will continue to be filled with the poor while the powerful await trial in comfort and freedom.

That is not justice. That is detention by poverty. And it is long overdue for reform. – Rappler.com

Raymund E. Narag, PhD, is an associate professor in criminology and criminal justice at the School of Justice and Public Safety, Southern Illinois University, Carbondale.