How Bail Reform Will Lead To Assigning A Numerical Value On Human Freedom
Written By: Anton Sawyer
How Bail Reform Will Lead To Assigning A Numerical Value On Human Freedom
I'm just going to put this out there post-haste. If you are someone who loves to use the phrases "if you can't do the time, don't commit the crime," or "only guilty people need to worry about the law," just leave now. You are far too removed from the realities of the wrecked American criminal justice system to learn anything here today. For the rest of you, welcome!
What I'm covering today is this: America's treatment of criminals during and after a trial, how this has played out so far with the attempted changes that have been enacted, and how none of it is going to change much of anything (even with the best possible of outcomes).
In an attempt to maintain complete transparency, all research and statistical fact-checking for all articles can be found in the bibliography linked here.
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As often as I have heard that the American justice system is "not perfect, but the best in the world," it's just reciting platitudes. I can't see how a criminal reforming program that's based on a for-profit model as having any incentive to give a little more leniency to the suspect/criminal.
Having been a drug addict in the past, the legal system is one I have encountered first-hand for a few different reasons. Living the realities of our system is vastly different than what's seen on TV, and the nuances of law will make your head explode. These experiences, along with knowing how horrific it is to monetize a caged human, make me happy to see that there have been a few different attempts at legislation and a court precedent to try and level the playing field in 2021 for defendants.
Keep in mind that when it comes to all the procedural stuff, I’m going to paint with some broad strokes. So, let's start at the beginning; after a suspect is in custody.
After all preliminary booking and the like, you typically go before a judge who sets your bail. Depending on the severity of the crime, along with other mitigating factors—things like prior convictions and their similarities to the current crime—everything is taken into consideration. For me personally, the largest bail I ever had held against me was $20,000. After the bail is set, the suspect is then given the opportunity to come up with the bail amount or secure the services of a bail bondsmen who typically requires a 10% collateral amount of the total bail. If you are able to post bail, you have to check in with the bondsman daily until you go to court. If you don’t keep in touch, it’s a breach and a warrant is set for your arrest. Then you go to court and finish out the proceedings.
For those who cannot afford to post bail or secure the services of a bondsman, you wait in lockup until your day in court—all the while working with a court-appointed attorney. Given my prior experiences, if you can afford your own attorney, you can usually find a way to post bond. I’ve never known anyone who could purchase the services of one, and not the other.
What happens if you can’t afford to post bail? This is where math, and the abuses of the bail system, come into play. The 2017 report, “‘Not In It For Justice’: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People,” details how approximately 63% of prisoners in California county jails in the 2010s were not sentenced, with many being held awaiting trial because they could not afford bail. In the six counties analyzed in detail, between 20% and 30% of detained prisoners were able to post bail, with the vast majority of those paying non-refundable fees to bail bondsmen.
Human Rights Watch found that tens of thousands of Californians were held in jail for days, weeks, and months without ever being convicted of any crime.
From 2011 through 2015, police arrested and jailed 1,451,441 people for felonies, nearly half a million of whom spent time in jail though they were ultimately found not guilty, their cases were dismissed, or the evidence was so weak that the prosecutor never filed charges.
The math portion to all of this comes in the fact of how economically destructive it would be to the person and their family if they had to spend months in jail. While incarcerated they could lose their job, lose their home potentially; all of that comes into play. Oftentimes if the math is “bad,” the suspect will plead guilty, do a smaller amount of guaranteed time with a smaller fine perhaps as it’s the more economically advantageous option. It’s sick and sad but makes complete sense.
Because of how terrible the California system is, state legislators and judges began to figure out a way to even the playing field in 2021.
As of March 2021, California’s highest court has ruled that judges in the state will have to consider a suspect’s ability to pay when they set bail, a major decision that essentially requires those who can’t afford bail to be freed unless they are deemed too dangerous to be released awaiting trial. The associate justice Mariano-Florentino Cuellar wrote on behalf of the court that judges have a variety of tools at their disposal to protect the public, guarantee victims’ safety and assure a defendant’s appearance at trial, including electronic monitoring, regular check-ins with authorities, or mandatory stays in shelters. “Where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources to post bail,’” Cuellar wrote.
The high court’s ruling came in the case of 66-year-old Kenneth Humphrey of San Francisco, who was jailed for more than eight months because he couldn’t post $350,000 bail on charges of stealing $5 and a bottle of cologne from a neighbor in a senior housing complex in May 2017—the same year the Human Rights report was published. Criminal justice reform proponents have long argued for changes to the bail system. “The jailhouse door shouldn’t swing open or closed based on how much money you have in your pocket,” said Rob Bonta, Attorney General of California.
Because of how popular the idea was statewide, there was an attempt made to legitimize it and see the bail reform come to fruition by California Democratic Senator Bob Hertzberg. His attempts at codifying this judicial ruling looked like it stood a chance until Troy Davis, 51, was released without bail on suspicion of auto theft in June and did not appear for his arraignment. It took a turn for the worse when Davis, while out on his own recognizance, was arrested and charged in the slaying of a Sacramento woman found dead along with her two slain dogs inside her burning home.
The other roadblock that would eventually lead to Hertzberg’s legislation failing with voters in November is the way it’s written. It replaces the cash bail system with “risk assessment” tools in which an algorithm would weigh factors about a person to help determine whether they should be released. Think of it as a real-life "Minority Report"—minus the Tom Cruise. A dystopia where there's some sort of all-knowing system in place that has the ability to predict the future, and in a very legal way, lead to the possibility that somebody's freedom hangs in the balance of this prediction.
Critics say it gives local authorities wide discretion to decide what is considered “high risk,” makes it easy for prosecutors and judges to keep people in jail, and expands the use of technology that could intensify racial biases. The law also calls for an assessment algorithm to create an individual “risk score” that supposedly reveals the likelihood of re-arrest or failure to appear in court if released. The software would in effect compare the individual with people with similar profiles, which means using data from a criminal justice system that has documented discrimination at every step–including racial biases in police stops, searches, and arrests. The most sophisticated algorithm would still “replicate” those biases, said Natasha Minsker of the ACLU, which revoked its support of the bill. “At worst, it’s going to amplify those biases.” With my legal run-ins, I agree completely. What is most chilling about how they planned to enact this bail reform is by using risk assessment that's computed from slanted information.
I’m not trying to glorify my criminal past, but I can say that two huge positives to those experiences are clarity and reference. Having met some incredibly interesting people with tragic backstories through a few stints in court-ordered rehab has allowed me to see the fall-out of pleading guilty when the math I wrote about earlier is used. I’ve spoken to some people who still lost their jobs once they had a conviction on their record—making the entire exercise of pleading guilty pointless. I’ve known people who had lost their homes because of some archaic “morality” subsection of a homeowners association contract they’d signed and their conviction triggered its enforcement. The list goes on. I do understand that preventing criminals back on the streets who shouldn’t be there is also paramount to public safety—the sad case of the murdered woman at the hands of Troy Davis comes to mind. With all these incongruencies, there are no clear answers when it comes to bail reform and what is best for all, but something needs to be done. Someone’s freedom shouldn’t be contingent on a specific number. The Nazis already failed at their attempt with that.
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