America the Confiner: End Discriminatory Money Bail

The money bail system is immoral. Studies show the system discriminates by economic status and race. A scholarly analysis of this immorality is set forth in The Color of Justice: Race, Ethnicity, and Crime in America. One study cited by the authors suggests that defendants who were detained prior to trial—because they could not afford bail—received sentences that were more punitive than those of people who could afford bail.[1] The study also reveals that African Americans and Hispanics had the highest incarceration rates of those detained before trial.[2] These groups, the study shows, were ultimately penalized more harshly by the criminal justice system because of their lack of money.[3] Where’s the justice in the system?

I’ve expressed outrage on the subject in a previous post entitled Bail, which gives an overview of the money bail system and how California keeps thousands of people in county jails because they cannot afford to pay bail.

There is something wrong with the bail system when money and race limit those who can buy their freedom pending criminal justice procedures. As such, the system is an unethical and immoral American-made caste system that has nothing to do with equal rights under the law. This wealth-based system negatively impacts lives in ways that aren’t always apparent without looking deeper. So let’s look deeper.

America the Awful

Action groups around the country know how awful the bail problem is. For example, the nonprofit organization Equal Justice under Law challenges the wealth-based inequality that effects people living in or on the brink of poverty who get engaged in the criminal justice system. This organization’s work is focused on ending the American money bail system because of the inequities. Its website says it best: “No one should spend time in jail simply because he or she is poor, but every day about 450,000 Americans sit in jail for that very reason.” That’s about equivalent to incarcerating the population of Atlanta, Georgia, the thirty-ninth most populous city in the country—all because they can’t afford pay for bail! There’s something very wrong.

This bail issue is hot and is part of the national conversation. The cover story of the November 6, 2017, issue of The Nation magazine is entitled “America Is Waking Up to the Injustice of Cash Bail.” This report by Bryce Covert points out that “70% of people in jail haven’t been convicted of a crime. They just can’t afford bail” and contains remarkable findings that jump out at the reader. Here is a powerful example:

• “The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population.”

The author extrapolates this finding and goes deeper into the ramifications of this profound statement:

Our willingness to lock up legally innocent people has huge—and often dire—consequences for those who are arrested. Jail keeps them from their work and family responsibilities, which in turn leads to missing rent and car payments. Those who end up detained, after all, have median incomes that put them in the poorest one-third of the country. Missing even a few days of work can be catastrophic.

Covert makes an important point about what he refers to as the pernicious effects of being locked up in jail awaiting the slow process of the criminal justice system. He draws a connection that people “who are detained before trial are far more likely to plead guilty—a desperate attempt to regain their freedom, even if temporarily—and [they] end up being sentenced to serve time.”

When I was held in the Orange County, California, jail awaiting transfer to state prison, I met a man who had been in the jail for fourteen months and had only been to court for his arraignment. He was represented by a public defender (PD) on an assault and battery charge. The man’s constitutional rights to a speedy trial were trashed. The busy PD had, unbeknownst to his client, waived his right to a speedy trial because of the PD’s heavy caseload. The PD was ignorant of the deeper impact of being locked up—or just didn’t care. The day before I was transferred from the jail, the man learned from his PD that the case against him had been dismissed that same day. The PD told him that the judge sentenced him, in absentia, to time served in the jail—without due process of law! I wonder how this legal maneuvering is reflected on the guy’s criminal rap sheet.

This Is a National Problem

The problem is national in scope, and comprehensive legislation is necessary to reduce the number of people detained pretrial. Prison reform issues brew in the shadows of preincarceration policies and procedures. During this time people are charged with crimes—and with the presumption of innocence until convicted, lose their freedom with horrible incentives and consequences. Let’s look at an example that underscores the immediacy of the problem.

Going Deeper Still

Rewire gives an eyebrow-raising account of how pregnant women fend for themselves and their unborn children in the immoral bail system. In her human rights analysis article about the Cook County (Chicago) jail, Kim Bellware writes that “keeping nonviolent pregnant women in jail through their due date because they’re too poor to bond out defies ‘common sense, reason, and thoughtfulness,’ Cook County Sheriff Tom Dart said in an interview.”

Bellware reports on a legislative effort to reduce the number of babies born in the state’s jails by providing alternatives to incarceration, thus eliminating bail issues that keep pregnant women in jail beyond their due dates. Jails were not meant to be delivery rooms or nurseries.

Change is possible when legislators focus on humane remedies. Illinois’s proposed new law HB 1464 would amend the Illinois criminal code so a pregnant woman awaiting criminal court proceedings and who is likely to give birth while in custody receives a pretrial release if the court is satisfied that she meets certain conditions that it determines are in the best interests of the detainee, her baby, and the public.

A National Fix

In July 2017, in a bipartisan effort by US senators Kamala Harris (D-CA) and Rand Paul (R-KY), the senators introduced S. 1593, the Pretrial Integrity and Safety Act of 2017. This bill encourages the replacement of paying money bail as a condition of pretrial release in criminal cases and would move states away from money bond, instead using legal and evidence-based pretrial justice practices. This means

replacing money bail systems with individualized, pretrial assessments that . . . shall use risk-based decision making that includes objective, research-based, and locally validated assessment tools that do not result in unwarranted disparities on the basis of any classification protected under Federal nondiscrimination laws or the nondiscrimination laws of the applicable State.

As with proposed and complex legislation that makes broad-brush changes to an ongoing system, the details of how judges will make “risk-based decisions” will become more concrete as the bill makes its way through Congress. However, a specific component of the bill is the proposed procedure that is clearly set forth, “ensuring the constitutional right of a defendant to a speedy trial . . . [and] setting specific limits on the time within which either the defendant is brought to trial or the case shall be resolved through a nontrial disposition.”

The language of the bill shows an understanding of some systemic problems posed by a money bail. The insights are encouraging even though some of the operative language is vague.

On the issue costs and the incentive for change, the proposal notes the following:

Jailing arrested individuals before trial is the greatest expense generated by current pretrial justice practice. Unconvicted detainees account for 95 percent of jail population growth, nationally, since 2000. Taxpayers now spend approximately $38,000,000 per day to jail individuals who are awaiting trial. Annually, this adds up to $14,000,000,000 used to detain individuals.

And, on the discriminatory socioeconomics of the money bail system, the bill goes on to say this:

Money bail systems have resulted in disparate harms to poor people and communities of color. Studies have shown that African American and Hispanic defendants are more likely to be detained pretrial than White defendants and less likely to be able to post money bail so they can be released. Moreover, race and money bail amounts are significantly correlated. Nationally, African American men pay 35 percent higher money bail amounts than White men, and Hispanic men pay 19 percent higher money bail amounts than White men.

The money bail problem is complex. I encourage you to check out the links in this post for additional information and examples of people entrapped in a system begging for change. I will keep track of the movement of S. 1593 through the legislative process and post updates as they happen.

As always, your comments and insights are solicited and welcomed.

Image courtesy of 123rf

[1] Samuel Walker, Cassia Spohn, and Miriam DeLone, The Color of Justice: Race, Ethnicity, and Crime in America (Belmont, CA: Wadsworth, 2012), 197–201.

[2] Ibid.

[3] Ibid.