In Colonial times, jails were used to hold those accused of crimes, in debt, and religious or political offenders. It was uncommon for these prisons to be used for incarceration. “At each session of the court there occurred what was called a "gaol delivery," when the jail was practically emptied of its inmates, only to be filled again during the interval between the delivery and the next session of the court.” Bail, in its earlier stages was used as an alternative to receiving corporal punishment.

The main goal of punishment is deterrence. If you are punished, you should learn not to do the bad action again. Bail punishes people before they’ve been proven guilty or not. The 8th Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Being fined for your freedom at exorbitant costs for being accused of a crime is without a doubt a cruel form of punishment. The ability to pay bail is solely based upon a person’s financial security. Therefore bail is yet another system that benefits the rich. John Oliver gives the comparison of Robert Durst paying a bail of $250,000, then fleeing from charges of murder, to a man named Miguel who was charged with $1,000 for driving with a suspended license. He could not afford bail, and had to wait for his trial in Rikers Prison.​.

In 1986 the Tough On Crime Movement was in full swing when the Anti-Drug Abuse Act of 1986 was passed, which included mandatory minimum sentencing for drug related crimes. The Movement was centered around policies that were aimed at reducing crime, especially drug related crime. Many politicians did not want to seem “soft” on crime because that made them unpopular with the voters. The mandatory minimums targeted people of color disproportionately. The criminal justice system has always affected people of color unfairly, and bail is no exception.