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Go Directly To Jail, We’ll Collect $2,000


If you were to get arrested, who would bail you out? I’m not asking metaphorically. I’m sure all Federalist readers are scrupulously law-abiding. But suppose you do one day find yourself on the other side of the bullet-proof glass. Would you be able to make bail?

The answer to that question might change your life. It could mean the difference between keeping your job or losing it. It might save your kids from foster care. Perhaps most alarming, it might make the difference between a “guilty” and “not guilty” plea on your permanent record.

Recognizing the imperative to address the bail problem, some are pushing for eliminating it. That might prove rash. Do we really want criminals to know up-front that they will have an opportunity to go on the lam? Happily, conservatives have already supplied a range of practical ideas for improving our pre-trial criminal procedures.

Brother, Can You Spare A Dime?

Bail really has become a problematic feature of our justice system. In the O.J. Simpson years, we heard a lot about rich fiends who got away with murder because they could afford crack defense teams. As it turns out, though, bail may mark the more significant line between haves and have-nots. If you can make it, you’re far less likely to spend months or years in the slammer. You’re also more likely to get off altogether. These are only the most obvious defects in the pre-trial proceedings of most states and counties.

Bail may mark the more significant line between haves and have-nots.

New York City has recently been working on bail reform, trying to ensure that non-violent, low-level defendants don’t serve lengthy pre-trial “sentences” while they wait for their cases to be resolved. This is part of a growing effort across the nation to improve pre-trial proceedings, diminishing the burden our justice system places on the very poor. Nick Pinto recently lamented “the bail trap” in The New York Times Magazine, where he explained how whole lives can be upended for want of a bail bond. The public is becoming increasingly aware of how catastrophic an arrest can be if you should happen to be poor.

Suppose you’re accused of first-degree murder, and a judge asks for a million-dollar bond. Who you gonna call? Presumably, a bail bondsman, and if you’re reasonably well-off, you may get to work up a murder defense from the comfort of home.

Now shrink the problem to a smaller scale. In this scenario, you’re poor and facing a drug possession charge, and you’re asked to post $2,500 for bail. Now who do you call? You’ll probably need a personal connection who is able and willing to furnish the money. Bondsmen often refuse to help with such cases, because the profit margins are too small. If you can’t furnish a financially stable friend to post bail, you’ll be jailed while your case works through the system.

Browder was never convicted of a crime, but ‘presumption of innocence’ didn’t save him from being beaten by guards and detained in solitary confinement for weeks on end.

That might take a long time, as Kalief Browder discovered when he was detained on Rikers Island for three years on suspicion of robbery. (He allegedly stole a backpack.) Browder was never convicted of a crime, but “presumption of innocence” didn’t save him from being beaten by guards and detained in solitary confinement for weeks on end. When the prosecution’s case fell apart, Brower was released, but he failed to re-adjust to life on the outside, and tragically committed suicide last spring. Did I mention that he was just 16 when this saga began?

How much would it have cost Brower’s family to bail him out, enabling him to spend his adolescence worrying about prom dates instead of solitary stints? Three thousand dollars. But they didn’t have it.

Jail isn’t an ideal spot for an unplanned getaway, as Mary Buser makes clear in her newly released book detailing her experiences as a mental health worker on Rikers Island. It’s also a bad place from which to mount a legal defense. Unsurprisingly, statistics indicate that people who make bail tend to have better legal outcomes, even when accused of similar crimes.

Strangling People By Their Bootstraps

The sad irony of a poorly designed bail system is that it does the most harm to the “noble poor”: those who are indigent but working diligently to improve their situation. Financially secure citizens will simply post bail and go home, while the truly dysfunctional may not have much to lose from a few weeks in the clink (where they will, after all, get their three squares a day).

A poorly designed bail system does the most harm to the ‘noble poor’: those who are indigent but working diligently to improve their situation.

But what about the working parent who can’t raise bail money, and can’t find anyone to take the kids? That person’s life could be thrown into complete disarray by a few weeks’ forced “vacation.” Jobs can be lost, apartments foreclosed on, and children sent into the foster system, all while the defendant is desperately trying to get a few minutes with his or her public defender to explain what really happened.

Capsizing people’s lives like that is obviously unjust, absent a very compelling reason. And even though many elements of our justice system could use reform, pre-trial proceedings merit special attention, for two reasons. First, they concern citizens who are still legally innocent. Given our nation’s commitment to holding people innocent “until proven guilty,” we should not be depriving citizens of their liberty for months on end, when they haven’t even been convicted. Second, on a more practical level, there are substantial benefits to handling cases appropriately up-front, before the arrestee’s personal life has been significantly impacted, and before large sums of public money have been spent on jailing people needlessly.

Happily, this problem is soluble. New York’s bail reform has mainly focused on replacing bail with pre-trial community supervision. That might be effective for certain low-level offenders. But more comprehensive reform is surely desirable, and ideas are already on the table. Marc Levin of the Texas Public Policy Foundation has offered a helpful summary of the most effective approaches in his memorandum on “bringing balance to pre-trial proceedings.”

We should not be depriving citizens of their liberty for months on end, when they haven’t even been convicted.

Levin makes numerous policy suggestions, but his argument can be distilled into two significant points. The first is that indigent defendants need better legal help, and in most counties this should be offered sooner. By exercising “early intervention” for indigent defendants, we can make the system more just, and probably also more efficient. Secondly, the early provision of legal aid will be more feasible if the system can do a better job of screening people when they are arrested, conserving legal resources for those who most need them.

It’s worth noting that these reforms are meant to be implemented on state or county levels, and most have already been implemented in particular states or counties. In fact, then, “the bail trap” is already being diffused in many places. But it’s worth drawing attention to successful strategies, especially in light of growing public concern about bail. It probably isn’t necessary to do away with bail altogether (as Pinto and others have argued), and from a public safety perspective that might well be rash. However, there are compelling reasons to attend to the burden our justice system currently places on the indigent.

Forcing Innocent People to Admit Guilt

It’s easy to see why indigent defendants would end up with more “guilty” pleas on their record than those who can afford bail. Most people are fairly desperate to get out of jail: conditions are bad on the inside, and on the outside their lives may be falling to pieces. The quickest way out is usually to accept a plea bargain. There’s a catch, of course: you have to admit you’re guilty, even if you’re not.

There’s no way to know how many people in America today have criminal records because they pled guilty to crimes they didn’t commit. Undoubtedly, there are some. There are surely more among the class of people who can’t afford bail. It undermines the integrity of our legal system when the poor are effectively coerced by desperation into accepting guilt for things they may or may not have done.

It undermines the integrity of our legal system when the poor are effectively coerced by desperation into accepting guilt for things they may or may not have done.

Inadequate attention to legal cases can also drain taxpayer money, insofar as we invest correctional resources (prison beds and parole officers) in people who neither need nor deserve to be punished. We should bear in mind, too, that fragmenting the lives of the poor-but-functional will intensify the strain on other social services. Lost jobs mean more benefits that need to be paid. Incarcerated parents mean more kids in the foster system. A badly designed pre-trial system is a luxury we can’t afford.

Three cheers for lawyers? They’re not the most popular professional class, but sometimes we do need them. That’s why Levin recommends that possibly indigent detainees be offered legal help before an arraignment or bail hearing. This would likely be coordinated through the public defender’s office, but might follow a variety of models, some of which might employ private-sector attorneys through nonprofit early-intervention schemes.

Bail hearings could also be more useful if we took advantage of a wider range of evidence when assessing the defendant’s real flight risk. For instance, defendants who are married or have significant community connections are far less likely to flout the court’s instructions. Many bail hearings neglect to take these factors into account. Why not draw on the best social science when making these determinations?

Good legal help for the indigent is likely to be money well spent, for the same sorts of reasons that preventative medicine is rarely a waste. It’s better to avoid a miscarriage of justice early, before too much damage has been done.

Let’s Do Legal Triage

“More lawyers” might sound like a dubious solution to the bail problem. For one thing, wouldn’t this be massively expensive? In fact it may not, if we can do a better job of “diverting” people whose cases don’t really require extensive legal attention.

Several strategies might help here, but all rely on a common theme: making use of the expertise that people already have. Police have experience identifying drug addicts and the mentally ill. Instead of putting them in lockup for jumping a turnstile, why not shuttle them directly to help or treatment centers? When minor offenders need major help, there’s no sense in cluttering the justice system with their ticky-tack offenses; just take them where they really need to be.

If the district attorney isn’t going to prosecute, arrestees should be released right away.

The police might also be entrusted with other lesser, straightforward offenses, such as underage drinking or minor drug possession charges. First-time offenders could be issued a citation, then required to pay a fine or do a few hours of community service. No need to waste the court’s time with these simple cases.

Some counties have helped their caseloads by appointing a full-time prosecutor to do “rapid-intake review.” In effect, this person reviews all charges as they are brought in, dismissing a case immediately if it is not suited for prosecution. Sometimes the police make mistakes because they aren’t familiar enough with the law, or perhaps the prosecutor can identify other reasons why the case isn’t worth pressing. Either way, if the district attorney isn’t going to prosecute, arrestees should be released right away. People shouldn’t have to sit in jail for a few days waiting for a prosecutor to determine that, in fact, they didn’t break any laws after all.

The goal here is to create a system that can do “legal triage,” thus using resources in a more efficient way. If police and prosecutors are enabled and expected to use their expertise more liberally, they may be able to divert arrestees appropriately from the start. That could free up both citizens and resources, which are needed for less-straightforward legal cases.

Reform Means Working Smarter

It’s tempting to look at a case like Browder’s and conclude that bail simply needs to be abolished, at least for low-level offenders. If some jurisdictions choose to experiment with that, it will be interesting to see the results. But in the meanwhile, there are less drastic ways to make the system smarter and more efficient.

As with so many areas of our justice system, effective reform probably shouldn’t involve a sweeping overhaul of the entire system. It’s mainly about the un-sexy work of patiently tabulating the evidence in front of us, and working to construct a system that can control crime while respecting the rights that are due to citizens of a free society.