Mimesis Law
25 April 2019

Fixing Bail: No Money, Big Problems

Feb. 25, 2016 (Mimesis Law) — The idea of “no money bail” started with an op-ed in the New York Times, penned by Truthout’s Maya Schenwar. My colleague, Scott Greenfield, shook his head at Schenwar’s proposal, saying that while it was a “breathtaking idea,” she wasn’t an attorney and couldn’t grasp the fundamental issues those in the trenches saw with the realities of bail and how it worked. Now four freshman Congressional representatives have taken Schenwar’s idea and turned it into legislation, with the “No Money Bail Act.”

Introduced Wednesday, the legislation would eliminate the use of money bail in the federal justice system, as well as encourage states to stop using money bail as a pretrial release condition by barring those that do from certain Department of Justice (DOJ) grants.

This sounds great, until you realize the conditions of the bill only eliminate money bail in the federal system. It doesn’t do a damn thing for the person sitting in a state jail over a $1000 bond arbitrarily set by a prosecutor and a judge who shrug, think it’s “reasonable,” and delve not once into the conditions and factors set by law to determine if a bond is reasonable.  It just offers “suggestions.”

“We cannot both be a nation that believes in freedom and equal justice under the law, yet at the same time, locks up thousands of people solely because they cannot afford bail,” said Rep. Ted Lieu (D-Calif.), sponsor of the bail-reform bill, in a statement. “We cannot both be a nation that believes in the principle of innocent until proven guilty, yet incarcerate over 450,000 Americans who have not been convicted of a crime.”

Well, yes, Ted. Yes we can, and yes we do.  That’s how the legal system works, despite your well-crafted talking points.

[The] presumption of innocence isn’t a “legal ideal,” but a foundational assumption. It’s not there because we believe, in our feelz, that defendants are innocent, but because we have to pick a side, guilty or innocent, with which to start a prosecution. In this country, we pick innocent.  Like all legal presumptions, it may not be the case, but it is still our starting point, and it either means something or it’s just legal masturbation.  And if it means something, then we’re incarcerating innocent people because of a speculative projection of what they might do.

Ted Lieu and his co sponsors seem to think “America should not be a country where freedom is based on income.”  He’s right, and looking at eliminating bail is an interesting mechanism to level the playing field since the State and Federal Government have unlimited resources to break any person they choose, regardless of wealth or poverty. The “No Money Bail Act” is a stab at reform from people who are willing to admit they are in power, have a chance to do something about what is finally being viewed as a “broken” criminal justice system, and have buried their heads in the sand until the public cried foul.

“Bail, like many aspects of the criminal justice system, changed in the 1980s and 1990s in ways that policy makers only now see as deeply troubling,” said ATJ Director Lisa Foster in a speech earlier this month. Citing a 1965 University of Pennsylvania Law Review article titled “The Coming Constitutional Crisis in Bail,” Foster complained that we have known about this problem for more than 60 years and yet done little to nothing to remedy it. (Emphasis added)

Few remedies have been proposed to address the crisis because it was far too easy for those in power to look at a sheet of paper with a dollar amount detailing arbitrary numbers set by people whose bills are paid, who never have to worry about their next meal, who don’t see a new pair of shoes as a moment that brightens their month, pull out the calculator, assess the total, and nod at the room.  The person who can’t pay that total means nothing, and that’s freely admitted.

[Soon] after I became a judge I found myself presiding in a criminal trial department.  I didn’t know much about bail.  I didn’t have to.  The county, like all California counties, had adopted a bail schedule, and it was easy to use.  Each offense was paired with a dollar amount and multiple charges were stacked.  There were lots of bail bond companies close to the courthouse and the jail.  Some of the defendants whose cases were assigned to me were out on bail; most – particularly those charged with felonies – were in custody…To be perfectly honest, I didn’t think much about bail, and to the best of my recollection, neither did anyone else…

It was just easier to look at the numbers set by schedule and not at the person in a jumpsuit, shackled to a table. The director of an organization called the “Office for Access to Justice” was complicit in making sure she “didn’t think” about bail.

It will be intriguing to see where the “No Money Bail Act” heads from press release to the actual floor of the United States House of Representatives. Will the idea sponsored by four freshman representatives take hold with other elected officials who want to support “criminal justice reform” but stay “tough on crime?”  Will Ted Lieu’s press statement spark a discussion among politicians about how we need to look at people instead of numbers?  That would be the right thing to do in a society based on the presumption of innocence.

In the interim, while government officials discuss their salient platitudes, people will still sit in jail and be pressured into guilty pleas since arbitrary numbers in the current system mean more than the people before the courts, and it’s easier to crunch numbers than look at a person.

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