The Guardian: America’s bail system: one law for the rich, another for poor

If you’ve ever been arrested for a misdemeanor offense, like jumping a turnstile, smoking a joint, or protesting a cause in a way the authorities would rather you didn’t, then you’ll know that your best chance of avoiding jail has less to do with what you’ve done than if you can make bail. It’s no secret that the best-quality justice is generally reserved for those who can afford to pay for it, but the divergence is never more blatant than when it comes to America’s complicated and discriminatory bail system.

In his recent state of the judiciary address, New York state’s chief judge drew attention to the disparity between the haves and the have-nots. He pointed out that the system is stacked against people accused of misdemeanor offenses, who, unable to afford the bail terms, have to stay in jail before trial. On average, it takes at least three months (and more likely, six months to a year) for a misdemeanor case to reach trial in New York City, which is a long time to spend in a cell before you’ve been convicted of anything.

In 2010, Human Rights Watch issued a report titled “The Price of Freedom”, which is awash with statistics and data on the bail system. The report makes a convincing case that an unintended consequences of our current system is that poverty, rather than the offense committed, dictates a defendant’s fate. Here is one of the nuggets it contains:

“Among defendants arrested in 2008 on non-felony charges and given bail of $1,000 or less, only 13% of defendants were able to post bail at arraignment.”

In other words, 87% of these defendants go to jail.

This fact is troubling on many levels, not least of which is that making bail at arraignment is probably the most critical factor in the outcome of a criminal case. According to Robin Steinberg of the Bronx Defenders:

“If they have you in jail, the power has shifted to the prosecutorial arm of the system, and they can force you to make a plea. If you are out of jail, the power dynamic is completely different. Our research shows that when bail is posted, at least half the cases are going to be dismissed outright and most will result in no jail time at all. This is why prosecutors fight so desperately for bail.”

Norman Reimer, executive director of the National Association for Criminal Defense Lawyers, was less circumspect when he recently spoke about this issue:

“Bail is used as ransom to extract a guilty plea. Fact.”

Research shows that keeping an indigent person in jail prior to their hearing not only causes personal hardship for that person (and their family), but also seriously damages their ability to fight the charges. According to Tim Murray, executive director of the Pretrial Justice Initiative (pdf):

“Studies going back as far as the 1960s show that defendants who are held pretrial are offered harsher plea offers than similarly situated defendants who are out on bail.”

Considering that 99.6% of all misdemeanor convictions in New York City come from plea deals, having to negotiate the terms of that deal from a prison cell is obviously an unfair disadvantage.

Conversely, if a defendant is able to come up with $500 or $1,000 to make bail, their chances increase exponentially for no jail time and dismissed charges. In 2007, the Bronx Defenders set up a pilot program called the Freedom Fund to post bail for indigent clients charged with misdemeanors. Over half of their clients’ cases were thrown out by the prosecution, and not a single one of the remaining clients took a disposition that involved any jail time. That small amount of bail money posted on their behalf was, literally, the price of their liberty.

So, we have a system of justice – at least, when it comes to misdemeanor offenses – that bestows those with money the freedom to fight their case, and forces those without means to needlessly fill our jails. Obviously, something needs to be done to remedy this situation.

The Bronx Defenders have made some very positives steps in that direction, by educating judges on alternatives to cash bail. Reviewing the current bail statute in New York, they found that it actually disfavors cash bail, and allows for many options, including personal property bonds and other forms of insurance. There is also a movement to individualize bail terms to reflect the defendant’s economic reality, and legislation has recently passed that lets charitable organizations post bail of up to $1,500 on behalf of indigent clients held on misdemeanor charges.

All these efforts help level the playing field, but money is still the unnecessary driving factor. Technically, bail should ensure people show up for their court appearances: in New York, 84% of released defendants show up for all their proceedings. When you consider that missed hearings often come down to an unaffordable bus ticket, the chances of indigent defendants going on the lam are pretty much non-existent.

There is resistance, of course, to change of any kind. Unsurprisingly, prosecutors are generally happy with the bail system as it stands. But even some defense attorneys are concerned about suggested alternatives, like increased monitoring and surveillance of indigent defendants. For these reasons, the current system has been allowed to remain in place despite all its evident failings.

Until we have the courage to change it, we should at least call bail by its real name: a get-out-of-jail pass for those who can pay, and jail-time for those who can’t.

By Sadhbh Walshe