The Bail Bludgeon Response

Activists are decrying the imposition of cash bail as a means of imprisoning people for poverty. They contend that cash bail is merely the way the wealthy buy their freedom while the poor languish in jail, turning bail into another rich person’s privilege. And the unwary are buying this simplistic argument, telling the stories of sad, poor innocent people held for lack of the ability to pay.

This narrative isn’t false, but it isn’t sufficient either. And there is no doubt that being held for the inability to bail out is one of the foremost wedges coercing the innocent to plead guilty. There is much, much, about bail that’s wrong and demands correction. But it is not the simple binary of rich and poor, and to argue otherwise is to argue  falsely, to call for an untenable system and to invite a bludgeon in response.

Many people think that “innocent until proven guilty” implies that everyone should be let loose on their own recognizance before trial. A moment’s thought reveals that this is idiotic. The white supremacist Dylann Roof killed nine people on June 17, 2015 at the Emanuel African Methodist Episcopal Church. His image was captured on security cameras and he was arrested the next day. Roof’s trial, however, didn’t start until more than a year later, December 7, 2016, and he wasn’t convicted of anything until December 15, 2016. Should Roof have been released before trial because he was “innocent until proven guilty”? Of course not.

I stand second to none in demanding high standards before the state can deprive a person of their liberty but high standards do not demand binary divisions. Tradeoffs are everywhere and when the evidence against the accused is strong and the danger to the public is high, it’s not unreasonable to deprive the legally innocent of some liberty prior to trial. The tradeoffs are ugly, as they always are when trading off two sacred values, but the tradeoffs cannot be avoided.

Employing Dylan Roof to argue the point is as ridiculous as much as anti-cash bail activists argue their side from the poor, innocent accused. Outliers aren’t the way to frame policy, even though they may exist. Then again, even when it comes to Roof, “of course not” isn’t exactly a strong rational argument.

Bail, or bond in some jurisdictions, exists to perform the functions of assuring a defendant’s return to court and protecting the public from harm.* Neither of these purposes are bad things, but then again, there aren’t many Dylan Roofs in the system. The vast majority of defendants run through the system have been arrested for petty offenses. They pose no threat to anyone, but they are deemed insufficiently responsible to be cut loose and trusted to return.

Ironically, the vast majority released without bail do return. Nobody needs the threat of a bench warrant over their head, guaranteeing that they will sit should they be arrested again. The charges just aren’t that big a deal. This raises the really big question: is cash bail the best mechanism to make the system work at all? Are there other ways to get people to return and to not commit crimes while out on bail?

The bail reformers frame the issue in a way that I think is misleading. Anytime someone can’t pay for bail they call that “unaffordable bail”. Well that’s literally true but it also gives an incorrect impression of destitute people being denied their freedom because they don’t have a buck. To be sure that does happen but here’s an open secret of the judicial process. Judges sometimes set bail expecting and indeed hoping that it won’t be affordable. Everyone knows this but the bail reformers don’t like to acknowledge it because it brings up the ugly tradeoffs. Consider the following, from Chicago, where the bail reform movement is very active:

…there are about 2,700 people being held in jail because they can’t afford bail but [the Chicago court official noted] 87 percent had a current violent or weapons-related charge, a risk assessment recommending “maximum conditions” if released, an assessment flagging them for violence, and/or an active probation or parole case.

In other words, the judges set a high bail amount for a reason.

This conflates two very different universes of defendants. The vast majority pose no threat of danger and are held on low bail, an amount under $5000, for no good reason. They can’t make bail and will sit. A lot of people don’t have $500 or $1000 sitting around for bail, and they are, indeed, held in jail (at far, far greater public expense) for no better reason than they’re poor.

But these aren’t the defendants whose criminal histories demonstrate a failure to return or committing harm to others. These are the turnstile jumpers, the pot smokers or the people too poor to pay a fine,** so by definition too poor to post bail.

Bail reformers are blind to the tradeoffs that must be made between public safety and the rights of defendants. Since the reformers are blind to these tradeoffs they can’t see that money bail actually helps to alleviate these tradeoffs. Reformers think that money bail simply keeps the poor in jail but in fact money bail is a half-way house between release on own recognizance and hold until trial.

In a better functioning system, where judges showed a little greater courage in releasing defendants rather than setting bail whenever a baby prosecutor at arraignment asks for it, this binary problem would be largely alleviated. Not perfectly, but better than now.

But calling for the elimination of all cash bail, such that the options are either release or hold, is likely to blow up in everyone’s face. There will be tradeoffs, including people released who fail to return to court or commit a crime while on release, but that’s part of what we need to tolerate in a system involving human beings. People aren’t perfect and wonderful, and judges certainly aren’t. Mistakes will be made. Problems can’t be prevented.

Distinguishing between these universes of defendants, the ones held on needless bail, and the ones for whom bail serves a legitimate purpose, has proven too difficult to leave to arraigning judges. Perhaps the solution is to eliminate cash bail below a $5000 threshold, so that people won’t be held on needless bail just because of poverty, but there will still be opportunity for those who would otherwise be detained to be released on bail. Or maybe this will be abused like any other system dealing with unknown variables.

The two sides, however, want to beat each other with bludgeons, release or detention with no safety valve in between, when a scalpel is needed. The problem is real, and extremely serious, but solutions demand far greater thought and nuance than the respective sides recognize. And both need to recognize that no system will be perfect and problems will always appear. That’s the nature of dealing with people.

*Not all jurisdictions use both functions in their release determinations. In New York, for example, there is no danger to the public prong, although such concerns are often tacitly incorporated in bail determinations.

**One of the most peculiar wedges to compel a defendant to pay a fine is the threat of jailing for failure to do so. The argument is that if there’s no wedge, they just won’t pay. After all, why pay if there’s no penalty? But if they can’t afford to pay, they can’t snap their fingers and make money appear either. So if they can’t pay the fine, how could they pay for bail? Quite the Catch-22 we’ve created in the name of coercion.

7 thoughts on “The Bail Bludgeon Response

  1. Shane K

    “This raises the really big question: is cash bail the best mechanism to make the system work at all? Are there other ways to get people to return and to not commit crimes while out on bail?”

    Somewhere between setting cash bail and ROR is release to pretrial supervision. The defendant doesn’t need money to get out but it also isn’t a get out of jail free card.

    1. SHG Post author

      Pretrial supervision carries a host of problems as well, from deft not showing to losing a job because he misses work to go, to being expensive and largely useless. It may well be another tool (like GPS ankle bracelets), but is it a broad enough solution to work?

      I’m not faulting your idea, or faulting you for coming up with an idea, but just that there are no magic bullets here.

      1. Shane K

        It’s a tool that judges should use more often and both sides of the bail argument would do well to acknowledge that it’s an option in the first place. Then again, I’m not sure the “release everyone” side is aware that there’s already a system in place to get people out without paying, and I seriously doubt any number of release conditions would satisfy the “hold everyone” side enough to make them want to let people out on pretrial.

        And with those conditions comes a million potential new hurdles for both defendants and government, as you mentioned.

  2. Jim Ryan

    With the “immenent”* closing of Rikers, and the proposal to expand the Kew Gardens, NY Facility to accommodate almost 2000 prisoners from 500, there lies an additional huge economic argument for re-arranging Bail in NYC. The pretrial incarceration cost, plus the cost of this expansion form a powerful argument for bail reform.

    1. SHG Post author

      The tail wagging the dog is a really bad argument. “Let’s come up with a solution that’s expensive and problematic, then change the circumstances giving rise to the solution to align with it.” Bail was a problem before. Closing Rikers has nothing to do with it.

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