Against Bail: End American Pretrial Detention for Non-Violent Offenders Now.

The original purpose of bail was to insure a defendant’s appearance at trial. That’s not how the system works today.

Stone wall with a small barred window. Photo by Michael Jasmund on Unsplash

In the 1980’s and 1990’s, I was a public defender who took cases in the District Courts of Massachusetts. Monday mornings began with bail arguments for people who’d been arrested over the weekend that the Commonwealth wanted to have locked up.

In 1983, I got assigned to represent a guy named Richard who was charged with forging 14 prescriptions for opiates. At that time, junkies sometimes stole prescriptions pads off doctor’s desks and wrote their own tickets, which is why you never see those prescription pads anymore.

Richard had 23 prior arrests and convictions in that court alone, but not a single default on his record. I remember the details of his case so distinctly because he was a former lover of mine, and also because I’d shot heroin with him when I was in law school.

The Commonwealth argued in favor of a high bail because of Richard’s long record. I started out by telling the judge that forging prescriptions was a victimless crime — the pharmacy got paid for those prescriptions, after all. The judge snorted at me. Then I pulled out the winning card.

“Please take a close look at the defendant’s record, Your Honor. This defendant has never defaulted. He’s always shown up for court, and he’s always paid his fines and costs on time.”

The judge shot me a skeptical look. He held out one hand to the probation officer, who passed him a three-inch thick stack of index cards that detailed all of Richard’s involvements with the courts. The judge shook his head in disbelief.

Because the purpose of bail at that time was to insure the defendant’s appearance at trial, and because Richard had proven he could be trusted to do that, the judge let him walk. A pretrial date was set, and Richard was released.

So, what did Richard do when he was released? Maybe he went out and got high, and maybe he even passed another forged prescription. I don’t know.

I do know that before he was due back in court, he got himself into a long-term, residential drug rehab program. His trial was postponed to a much later date to allow him time to prove he could stay clean. Ultimately, Richard was given probation, got a job, got married, and had a life.

Today, people like Richard get held on bail they can’t make. They do time before they are ever convicted. If they have jobs, they often lose those jobs. If they have homes, they often lose those homes. If they have spouses, lovers, children, they can lose those people too.

Innocent until proven guilty is no longer the law of the land. People who are arrested and can’t make bail are treated as if they are guilty. They pay dearly. They pay with time that they never get back.

When and how did the bail laws change? And why?

Individual states have always set their own laws regarding bail. Although the Eighth Amendment to the American Constitution prohibits “excessive bail,” that prohibition has never been explicitly applied to the states. However, a 1951 U.S. Supreme Court case held that “ a defendant’s bail cannot be set higher than an amount that is reasonably likely to ensure the defendant’s presence at the trial.”

The 1966 Bail Reform Act sought to further insure that bail imposed as little financial hardship as possible on defendants. President Lyndon B. Johnson, in signing the act, told a short story about why:

“A man spent two months in jail before being acquitted. In that period, he lost his job, he lost his car, he lost his family — it was split up. He did not find another job, following that, for four months.”

But in 1984, a new Federal act authorized another consideration: “danger to the community.” This law superseded prior statutes and case law holding that risk of flight (i.e., not showing up for future court dates) was the only criteria for setting bail. Now, Federal courts could consider the amorphous “dangerousness” standard.

Individual states fell in line, even though many cases went up on appeal on the grounds that assessing dangerousness meant assessing guilt — and Americans were entitled to trial by jury for that, not just a ten minute bail hearing in front of a judge or magistrate.

Since 1984, the percentage of defendants held on pretrial bail has skyrocketed. One abomination contributing to that statistic is the rise of for-profit bail bond companies and the insinuation of those companies into law enforcement and the court system. In essence, our criminal justice system risks becoming commercialized through these practices, and through private, for-profit prisons.

Some states are beginning to fight back; one strategy is to make for-profit bail bond companies illegal. Nonprofit organizations are also fighting back by organizing politically and by raising funds to pay bail for people, especially mothers, who are in pretrial lock up. But these fights are complex topics for other articles.

Over and over again, studies have shown that race and class bias has strongly influenced whether defendants are held on pretrial bail. In some states, judges are elected rather than appointed, and some pledge to be “tough on crime,” which translates into high bails in the courtroom. Ironically, white collar criminals who have the means to flee prosecution will usually make bail, while blue collar criminals who can’t afford a tank of gas, let alone a plane ticket, are detained because they can’t put up a few hundred dollars.

Holding people accused of nonviolent crimes on bail costs all of us in tax dollars — over 17 billion dollars a year according to a 2015 Washington Post article that summarizes data from the Bureau of Justice and other agencies. Two more highlights:

  • 75% of the half-million Americans held on bail, according to the National Conference of State Legislaturesare nonviolent offenders, arrested for traffic violations, or property crimes, or simple drug possession.
  • There’s a very good reason for “innocent until proven guilty”: people, including people in law enforcement, make mistakes. According to a 2013 Bureau of Justice Statistics Report, one third of defendants accused of felonies in the nation’s largest counties were not ultimately convicted of any crime.

But the truly reprehensible and long-term cost of pretrial detention is the human cost: lost jobs, lost homes, lost families, lost lives. And that can happen to any one of us who isn’t already sitting pretty on pile of extra cash.

Perhaps the most staggering cost is the cost to the American tradition of freedom and democracy.

If one of us can be punished before being proven guilty, then none of us are innocent until proven guilty. None of us are safe until all of us are safe.

Words in NYT, WaPo, Oprah Mag, Poets&Writers, et als. Adoptee/high school dropout/hep C survivor/former trial attorney. @MicheleJSharpe &

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