A jail, but no bail? That’s the idea promoted in this New York Times op-ed by Maya Schenwar, editor-in-chief of Truthout, and it’s really quite a breathtaking idea. Before getting to her point, it bears noting that Schenwar isn’t a lawyer, and demonstrates little grasp of the depth or complexity of the moving pieces of the legal system.
This makes her op-ed easy to pick apart on many levels, as she glosses over the details of the existing system with shallow observations like this:
Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.
Mayor de Blasio’s plan is a positive step. Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?
This is the sort of superficial tripe that makes those of us in the trenches wince, knowing that “reducing the backlog” sounds far more fun than it really is. That said, outrageous new ideas are often easier to make when not bogged down by details or facts that just make it seem impossible to accomplish. Sometimes, an outsider to the system sees something that one can’t see from the trenches.
Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?
Usually, it is because they cannot afford bail.
Okay, not quite an epiphany, but a truism. The vast majority of people held in custody in lieu of bail aren’t there because they’re dangerous father-rapers, but because the prosecution sought some silly bail amount, say $1000, to assure their return to court, and a judge, after a quick shrug and a funny look on his face, said “whatever.” To people who have no money, a $1000 bail might as well be a million dollar bail. If you can’t make it, you sit.
In other words, we are locking people up for being poor. This is unjust. We should abolish monetary bail outright.
Well, not quite for being poor, but effectively, because they are poor. To a puppy prosecutor, fresh from law school where mommy made sure his Starbucks bill was covered, and to the elder prosecutor, now sitting on the bench to reach midlife hegemony, setting bail at $1000 seems pretty negligible. BFD, each thinks inside his head. But then, they never shared an apartment on 168th and St. Nicholas with six siblings, where new shoes were a big deal.
Some will argue that bail is necessary to prevent flight before trial, but there is no good basis for that assumption. For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place. (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)
Yeah, well, no. This is just not correct, that “people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place.” It’s hardly that clear cut, but for reasons that are obvious to lawyers representing defendants at arraignment with prior warrants on their rap sheet, suggesting that showing up for court isn’t always their first priority. And even those who pose a risk of flight often get bail, because of some damn fine lawyering. In other words, it’s just not this simple.
As for “racist assumptions,” there is a deeply uncomfortable reality experienced in courtrooms every day. Defendants don’t show. Sometimes it’s intentional, but more often than not, it just happens. They don’t show for appointments. They don’t show for court. There is an undercurrent of irresponsibility, a lack of appreciation that there are parts of the world where time and date matter, but it’s just not their part of the world.
Sorry to feed racist assumptions, but sit there a few hundred times waiting for a defendant to appear and you realize that something is amiss. Call it racist all you want, but as Justice Milton Williams used to explain back before micro-aggressions were a thing, “don’t worry, counselor. Your client will be here eventually. He’s just on CP time.” Yeah, that’s how it was in court back in the bad old days.
Without bail, some defendants won’t return to court. We will lose some. We know it because we lose some now when they’re released on their own recognizance, and we lose some even when they have made bail. It happens. It’s going to happen. Let’s not pretend otherwise.
But that’s not the end of Schenwar’s argument.
In addition to being unjust and unnecessary, pretrial incarceration can have harmful consequences. Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-out counterparts, they are also more likely to be convicted at trial. As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars. People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.
Those who spend even a few days in jail can lose their jobs or housing during that time. Single parents can lose custody of their children. By exacerbating the effects of poverty, and by placing people in often traumatizing circumstances, pretrial incarceration may actually lead to more crime.
These points are certainly true. Incarceration wreaks havoc with people’s lives, makes it substantially harder to fight and coerces guilty pleas from people who shouldn’t plead out. And then comes the kicker:
Finally, monetary bail is at odds with the legal ideal of the presumption of innocence. If we want to grant people this presumption, we must not punish them before their trials.
Not to nitpick, but the presumption of innocence isn’t a “legal ideal,” but a foundational assumption. It’s not there because we believe, in our feelz, that defendants are innocent, but because we have to pick a side, guilty or innocent, with which to start a prosecution. In this country, we pick innocent. Like all legal presumptions, it may not be the case, but it is still our starting point, and it either means something or it’s just legal masturbation. And if it means something, then we’re incarcerating innocent people because of a speculative projection of what they might do.
As with the presumption of innocence, or driving on the right side of the road, sides need to be chosen as to what assumptions we’re going to drop on people’s heads. Pretrial detention is expensive for us and disastrous for defendants and their families. It’s almost always counterproductive, as we’ve ruined whatever normalcy of life they might have and left them with few prospects other than crime. All to assure their return to court and prevent their committing another crime while a prosecution is pending.
The question is which of these values is greater, more deserving of society’s taking a risk. Do we give defendants the benefit of the doubt as innocent people or not, and screw unmercifully with their lives? Even if we lose a few, they’re usually found eventually. But ruining people’s lives based on off-hand numbers can’t be justified in a society that presumes them innocent.