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| Image: Daniel Schwen |
Written by Marianne Mansfield
Let it be understood at the outset: I am not a defense attorney. I am not a judge. I am not an officer of the court. I do not knowingly commit crimes (unless you count speeding. If so, I’m a chronic offender). I have never been arrested. Therefore, I have never been in a position in which it was necessary to post money bail.
I am, however, intellectually and emotionally drawn to circumstances of unintended consequences. And so I read with interest a story in the Wednesday, June 10, New York Times regarding the additional burden placed on the poor by high money bail amounts.
Money bail is the amount of money a defendant is required to pay to buy release from jail. It is most frequently imposed along with non-money bail, such as arrangements for monitoring and supervision. The most commonly agreed upon purpose for money bail is twofold: to make certain that a person returns to court to face charges and to protect the public safety. To the extent that the above makes sense on its face, I would have guessed that money bail is serving its purpose. But in truth, it isn’t.
Here is where the unintended consequence enters the picture. Because not all persons held on bail have equal resources—as of course we know they don’t—the protection of the public safety factor is inversely related to the wealth of the defendant. Wealthy criminals can afford to bail themselves out, while in many cases, the poor cannot. Although it appears that bail is set at rates that are linked to the crimes alleged, imagine this scenario. A poor person and a rich person are charged with the same crime. Their bail is set at the same amount. Who do you think bails out first? And who, although not yet proven guilty of anything, sits in jail because he cannot bail out.
Now assume both are guilty. Public safety is threatened only by the one who is on the streets: the person who could afford the bail. Or conversely, assume both are innocent. The one who walks free is the one who can afford the bail. The other innocent person is still incarcerated.
Continuing our scenario, imagine that the poor person has a job, is going to school, or is caring for children or an aging relative. Remember, that person is still in jail. It is likely that jobs held by people who cannot afford bail are typically low-paying jobs. How many of those jobs do you think would be held for a person sitting in jail, unsure when he or she will be released? Or imagine yourself a teacher. How would you handle the situation of a student suddenly failing to show up for weeks at a time? Could you legitimately say that student had passed the class if they weren’t around to demonstrate that fact?
The inability to pay bail, even the 10 percent most bail bondsmen collect, has consequences that reach far beyond the jailhouse door. Poverty permeates far corners of the lives of the men and women who experience it and their loved ones.
Take for instance the case of Dominick Torrence of Baltimore, who was arrested on the night of April 28 and charged with disorderly conduct. His arrest came as part of the citizens’ unrest following the death Freddie Gray who was fatally injured while in police custody. Torrence’s bail was set at $250,000. Ironically, that is the same amount of bail that was set for the two police officers who were charged with Gray’s death. Disorderly conduct vs. murder. Should the accused be held on the same amount of bail? Is that fair?
Mikisha Brown, the mother of two young boys living with her and Torrence, said in a video clip attached to the NYT story that because she relied on Torrence to help her watch the children, she had been forced to stop going to school and to stop working. Unintended consequences. Unintended casualties.
Or consider what has happened in the aftermath of the recent biker shootings in Waco. You may recall that nine people were murdered and 18 injured in the confrontation outside a diner. The police took 177 people into custody and charged each with engaging in organized crime. Each person’s bond was set at $1,000,000.
Ninety-nine have bailed out. Seventy-seven are still in jail. Some defense attorneys have been able to negotiate a lesser money bail amount. Their clients are among the 99 who are now free.
To date, no one has been charged with the murders or personal injury offenses.
On May 17, the police of Waco were faced with mayhem. They had to act quickly and decisively. And they did. No reasonable person could argue with their motivation or their response. But that was more than three weeks ago. Enough time has elapsed to allow the criminal justice system to sort out what happened, charge the offending parties, and make it possible for those who simply cannot afford a million dollars in bail to be given a more reasonable option, one more fitting their charges. Unintended consequences.
Defense attorneys, scholars, and even some judges are critical of the current state of the money bail system in our country. They say that system routinely punishes poor defendants before they get their day in court, often keeping them incarcerated for longer than if they had been convicted right away.
The U.S. Justice Department has weighed in on a civil rights lawsuit challenging bail amounts based on solely on the charge, calling them unconstitutional. (See US District Court, Varden v City of Clayton, Al) In several states, chief justices and politicians are calling for overhauls of the bail system.
I feel certain that the architects of the original money bail system did not intend for it to discriminate against the poor. But poverty wheedles itself into unexpected places in a person’s life. If we wish to live in a society that honors fairness for all, we must actively call out systems that work at odds with what we envision.
It appears that the money bail system is one that we must call out.
