Unfairly Jailing the Poor
Terry H. Schwadron
March 29, 2021
Just maybe, we’re seeing a glimmer of common-sense logic settling on the justice system.
A California Supreme Court ruling this week said that judges must consider suspects’ ability to pay when they set bail, essentially requiring that poor defendants be freed or monitored outside of jail unless they are deemed too dangerous to be released awaiting trial. That decision comes on the heels of the state of Illinois deciding that it needs a new way to putting pre-trial suspects in jail just because they cannot afford bail.
Obviously, the current rules are biased over class, income — and, necessarily, race. On top of that, jailing the arrested without trial puts them in harm’s way of coronavirus infection as well. Public health officials across the country have detailed over=infection rates in jails, and there has been a general political pushback against extending coronavirus vaccine programs to jails and prisons before the bulk of Americans have been vaccinated.
Perhaps most interesting about this week’s court decision was its simple moral core: “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” the justices said in a unanimous decision. Of course, judges can require electronic monitoring, regular check-ins with authorities or order the suspect to stay in a shelter or undergo drug and alcohol treatment, the justices said — conditions that “in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.”
The court’s ruling allows cash bail, so long as defendants can afford it, but adds that “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail — and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” To determine when protecting the community means the suspect cannot be released at all, they said, but then “a court must first find by clear and convincing evidence that no condition short of detention could suffice.”
How Bail Works
The numbers are astonishing. According to the Brennan Center for Justice, pretrial detainees make up more than 70% of the U.S. jail population — approximately 536,000 people. Many of them are only there because they can’t affordbail.
Last November, California voters rejected a state law change to end the state’s cash bail system by substituting risk assessments for every suspect, even after months when a judicial order set bail at zero for lower-level offenses during the coronavirus pandemic. In 2018, California lawmakers moved to end cash bail and is considering formally setting bail at zero for misdemeanors and low-level felonies.
While the state Supreme Court considered the case, it asked all California judges to set bail amounts based on what suspects can afford to pay.
Just to refresh memories formed by Perry Mason or Law & Order, bail is money or property set by the court to guarantee future court appearances. Bail can be forfeited if suspects fail to appear for trial. If the suspect can’t afford bail, until now have kept suspects in jail. Of course, judges can consider other means, including ankle monitors or releasing people in their own recognizance, but generally do not.
Other factors might include a suspect’s criminal record, work record, community ties, the nature of the crime or the ability to leave town.
It is easy to see that such a system favors the wealthy or the property owner who can base bail on a mortgage. Less easy to see is a system in which lower-income defendants stay locked up, a system that critics say encourages some innocents to plead guilty just to get out of jail.
In full disclosure, our daughter, Hannah Schwadron, is active with previously incarcerated community partners in the Tallahassee Bail Fund, which raises money to spring individual cash-burdened suspects identified by public defenders as low risk, seeks to lower violence and helps arrestees reach appropriate social services agencies. The fund also is active in explaining rights of arrestees, pressing for better jail conditions, and resolving often conflicting interests within the community about bail. It is linked with Florida Bail Fund, which does similar work and fund-raising statewide.
Even when highly successful, such efforts are painstaking and involve a lot of effort by a committed band bent towards a view of fairness and justice often at odds with the goals of large systems.
Other States Too
Over years, New Jersey, California, Illinois and New York have limited the use of bail as unfair to poor defendants. Under Illinois’s new law, which will ease in until 2023, judges will no longer be able to set any kind of bail for a defendant charged with a crime, making it unique among states that have reformed the bail system, according to legislators. State legislators had been seeking the law change over five years.
The argument against ending cash bail is equally simplistic. Law enforcement simply wants to remove lawbreakers from the streets.
You wonder why this isn’t part of the Biden agenda for a federal law that captures a distinct unfairness issue that probably could get bipartisan support.
As part of the Illinois change, for example, local law enforcement agencies testified that jails have become centers for all kinds of anti-social behavior, from drug crimes and robbery to mental health cases not properly addressed elsewhere in society. Fair or not, removing people from the streets is seen as effectively making everyday life easier to these agencies.
Studies have not been able to link cash bail issues to any reported surges of crime in metropolitan areas, however.
Former California Atty. Gen. Xavier Becerra, now Secretary of Health and Human Services, argued that judges should consider bail for the poor only if suspects are dangerous or likely to flee. His replacement, former Assemblyman Rob Bonta, a proponent of ending cash bail, said in introducing the legislation that “The jailhouse door should not swing open and closed based on how much money someone has.”
The Criminal Justice Legal Foundation, which says it represents crime victims, argued in a friend of the court brief that making cash bail contingent on suspects’ ability to pay violates state law, which allows for considering the safety of the public and victim, the seriousness of the alleged crime, the suspect’s criminal record, and the likelihood that he or she will flee.
Actually, this California Supreme Court ruling involved Kenneth Humphrey, 66., of San Francisco, who was jailed for more than eight months because he could not post $350,000 bail on charges of stealing $5 and a bottle of cologne from a neighbor in a senior housing complex in May, 2017. The Association of Deputy District Attorneys in Los Angeles County noted that Humphrey has a long criminal record. He is alleged to have demanded money from a 79-year-old man who uses a walker, then followed the victim into his apartment where he stole the items.
Eight months and counting for a $5 theft. Doesn’t sound fair on its face.