“Whether you’re in jail for three days, three weeks, three months or three years, it’s an accelerator of human misery,” said Jonathan Lippman, the former chief judge of New York State’s highest court and currently the chairman of an independent commission on criminal justice reform. “You come out a changed human being.” - NYT
At The Quintessential Centrist, our view is that under most circumstances, cash bail should be abolished. Reason being, it is one of, if not, the most explicit example of legal discrimination currently being practiced in America. The use of cash bail is categorically unfair and a blatant violation of the equal protection clause of the 14th amendment, because it directly discriminates against poor people. A compelling argument can also be made that cash bail indirectly discriminates against blacks and other minorities that represent a disproportionate number of subjects in the criminal justice system. Before further delving into why cash bail is unfair, it is helpful to first have a basic understanding of how the “system” functions.
The Process of Entering the “System”
To navigate each individual states’ particular laws pertaining to jail and bail is a granular, fiendishly complex undertaking. For the sake of simplicity, we will focus our attention on New York City.
Let us consider a common misdemeanor, criminal possession of a controlled substance in the 7th degree (NYS penal code 220.03(a)), which until late 2018 included marijuana. Police stop you and allegedly find you in the process of a criminal act. They have 3 choices:
a. Let you go.
b. Give you a Desk Appearance Ticket (“DAT”), which means you are free to go home but must return to court in approximately 6 weeks to be arraigned before a judge. Generally, DAT’s are given to first-time offenders for petty larcenies, traffic and vehicular crimes or violations like disorderly conduct; and occasionally, for a nonviolent felony like grand larceny.
c. Cuff you and bring you back to the police precinct to write up the arrest report, check for any previous arrests etc., electronically scan your fingerprint and retina, take your “mug shot,” and place you in a cell until you’re ready to “get booked” at Central Bookings. At a minimum, you will spend at least one night in jail – detained and monitored by the Department of Corrections.
Central Bookings: This is a basement-level area with multiple jail cells (covered in wall scratching’s of graffiti with gang symbols and cries for help alike). This is where Dept. of Corrections first steps in, but you are still technically under the custody of the NYPD.
If you cannot afford a lawyer, a court-appointed public defender (either Legal Aid Society or one of the borough specific agencies) will be assigned to you.
In Manhattan, the prosecutors in arraignments are typically first-year attorneys, fresh out of law school. They read the allegations against you aloud. The “offer” they recommend to the judge is generally predetermined by a superior who read the police complaint – one of a couple hundred – overnight in a dark cubicle and decided this offer based on the highest level “charge” written by the arresting officer.
When the “top charge” is an A-level misdemeanor, the assistant district attorney (ADA) will recommend anywhere from 10 days to 60 days jail depending on subjects' criminal history. Alternative to Incarceration (ATI) programs can sometimes provide an opportunity for the defendant to obtain treatment or social services, but usually only if they plead guilty; perversely some individuals plead guilty - whether they are or in fact are not - simply in order to go “home.”
When the “top charge” is a felony, the (ADA) will often recommend 45+ days of jail plus bail or bond monies. Many people cannot afford to post bail and have no choice but to stay in jail “pre-trial.” This is just beginning of the unraveling for any semblance of a life they had on the outside.
Bail or Jail
Typically, within 24 hours of arrest, defendants are brought before a judge. At that stage defendants are either released and ordered to return to court at a later date to face charges, jailed until the trial is over, offered (and usually accept) a plea bargain, or a judge could grant bail. There are many different types of bail (property bond, personal recognizance release, citation release, immigration bail bond, federal bail bond, etc.) the details of which are beyond the scope of this article, but the most common form is cash bail.
In the case of cash bail, a defendant simply pays the amount set by the judge and is able to “go home” until trial. If a defendant is unable to afford bail, they have two options: go to jail; or employ the services of a bail bondsman. Rules vary by state and are complex, but usually a bail bondsman charges a fee tacked onto the bail amount to post bond. In exchange for a fee, he assumes the responsibility for the entire bail amount if the defendant fails to show up for court. If a defendant is unable to afford the bondsman’s fees, they have no choice but to report to jail. And “whether you’re in jail for three days, three weeks, three months or three years, it’s an accelerator of human misery,” said Jonathan Lippman, the former chief judge of New York State’s highest court and currently the chairman of an independent commission on criminal justice reform. “You come out a changed human being.”
Innocent Until Proven Guilty…But Might as Well Be Guilty
The Equal Protection Clause of the 14th Amendment makes clear that no state shall, “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In our view, cash bail undeniably discriminates against the poor. It is unfair and unequal. Put simply, if a rich man and a poor man are accused of the same crime, why should a rich man be allowed to go home pending his trial solely because he can post bail, while a poor man must stay in prison – sometimes for years – until his case is adjudicated, because he cannot afford to post bail? Furthermore, very wealthy defendants - even if they are flight risks or threats to society – often get the option to pay a gargantuan sum of money to avoid being detained in return for being placed under house arrest with 24-hour monitoring. This is not fair. Laws must be applied equally to all citizens.
In fact, “in 2017 around 33,000 criminal defendants in New York couldn’t post bail at their initial hearing. They went straight from a courthouse to jail simply because they were poor.” According to the Pretrial Justice Institute, 6 out of 10 (nearly 500,000) people in jails throughout the U.S. on any day are awaiting trial, and “people who have not been found guilty of the charges against them account for 95% of all jail population growth between 2000-2014” (PJI, 2019)
Of course, some exceptions should be made. Sometimes the accused are a legitimate flight risk or have a prior history that would indicate that they are a fundamental threat to society. Those defendants should remain in jail. Indeed, a number of factors should be carefully weighed in order to determine whether or not a defendant is released prior to his or her trial; but the amount of money in their bank account shouldn’t be a factor, and it most certainly should not be the only factor.
Cash Bail & Racial Bias
The question of whether cash bail, in addition to being irrefutably economically biased, is also racially biased is a more nuanced and complicated subject to tackle. Indeed, it can and should be the topic of a separate TQC article. That said, we would be remiss not to at least briefly opine on the subject in this writing as it is closely related to the issue of cash bail and socioeconomics.
The median household income for Asian Americans is ~$80,000, for White Americans is ~$68,000 and for Black Americans is ~$40,000. Despite a ~20% drop in the black jail incarceration rate between 2005 and 2013, black people are still over 3x more likely to be incarcerated in local jails nationally than whites. The combination of a higher rate of incarceration coupled with a lower median income increases the odds that black men, if charged with a crime, will have to wait in jail before their case is heard. If a defendant is jailed prior to trial, there is an increased probability he will be either be wrongly convicted, exposed to an environment where he might be party to another crime, or both.
Is the primary reason black men are arrested and incarcerated at alarmingly higher rates than their white (and asian) peers because black men commit a disproportionate amount of crimes, or is it because of biased law enforcement officers and a criminal justice system that applies the law more harshly towards blacks - which in turn can negatively impact predominately black communities - or is it a combination thereof? And if the criminal justice system is indeed not colorblind, is it unto itself a primary catalyst that perpetuates a negative feedback loop for blacks and other minorities (arrested, jailed, convicted, sentenced, compromised employment opportunities, gutted communities, lower median income, lower revenue streams from property tax to support education, etc) that while not impossible, is exceedingly difficult to break? These are extremely important questions that deserve materially more attention.
In her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander posits that “the war on drugs has created a new racial caste system, disproportionately punishing black people."
Her view is that "a powerfully interlocking system of laws and policies targets black people for drug crime, punishes them more severely than white criminals, and makes life as an ex-felon extremely difficult. The result is effectively racial subjugation and disenfranchisement.” On the surface, these arguments seem to have merit. That said, we didn’t read her book so cannot – and therefore will not - intelligently opine about it.
Steps In The Right Direction
Progress is often painfully slow and rarely linear. As of October 2019, California will be the 1st state in the Union to eliminate the use of cash bail. While there have been no shortage of instances where we have been critical of the Golden State, we applaud this move. Moving forward, California will rely on the state's Judicial Council and Pretrial Assessment Services to group people into three buckets: low risk, medium risk and high risk. Most likely, high risk suspects will remain jailed while low risk defendants will be set free. In addition to California, Alaska, Kentucky, New Jersey, New Mexico, and Washington D.C. have enacted reforms to curtail the use of cash bail.
It remains to be seen if California’s new laws for determining pretrial release eligibility will curtail potential racial bias - humans are still in control - but one thing is for certain, while somebody might still remain in jail for a low level crime simply because they are black, which is unacceptable, they will not remain in jail simply because they are poor; and that is an important step in the right direction.