All Hail Bail

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.  

Eighth Amendment to the U.S. Constitution

Except where there is a capital crime or an exceptional risk of a defendant’s fleeing the jurisdiction to escape prosecution, most folks accused of a crime are given some sort of bail to allow them to avoid jail time pending a trial. In some jurisdictions, people can be released on their “own recognizance,” particularly if they have serious assets in that local area. After all, under the American system of jurisprudence, an accused is presumed innocent unless actually convicted. Sometimes, the crime is just too minor to justify a bail requirement… at least you’d think so.

Unfortunately, most folks assume that someone who is on trial for a criminal offense is guilty. “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the results of guilty pleas.” Plea Bargaining and the Innocent by U.S. District Judge John L. Kane, The Marshall Project, December 26, 2104. These numbers reinforce the notion that the accused are in fact guilty.

There is, however, a harsh reality that having competent legal representation is wildly expensive these days; so most people who are accused – especially those who have little more than an over-worked public defender on their side – cop a plea. There are so many arrests, so many scheduled trials, and prosecutors throw the book at anyone bold enough to reject an offered plea… even if they are truly innocent. And we know that that with 5% of the world’s population, we still have a quarter of the earth’s incarcerated criminals. The system is failing us all. So many less-affluent accused simply cannot afford to fight the good fight, knowing that in most cases their public defender cannot do much more than provide a very incomplete defense.

As legal fees have risen much faster than the cost of living, plea bargains have risen in lock-step; “they rose from 84% of federal cases in 1984 to 94% by 2001.” Wikipedia. To get an idea about how expensive justice can be, the legal fees incurred in defending former Virginia Governor Robert McDonnell and his wife against corruption charges – the the trials and multiple appeals including a successful foray to the U.S. Supreme Court – were approximately $27 million. Money buys justice. A lot of money buys a lot of justice, and while the U.S. Supreme Court has ruled plea bargaining to be constitutional (Brady vs U.S., 1970), for those unable to afford adequate legal representation, the risks of being under-represented and tried cause too many people to cop a plea.

While some estimate that the number of innocent people who accept a plea bargain for a crime they did not commit might be as high as 30%, particularly within inner city minority communities, U.S. District Judge (Manhattan) Jed Rakoff puts the number at 8% or less. “‘The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,’ Rakoff said during a lecture [in April of 2014] at the University of Southern California. ‘Plea bargains have led many innocent people to take a deal.’” Huffington Post (5/29/14). Any number of innocent pleading guilty is wrong.

But being poor in too many states (even the federal government) often subjects those least able to pay to bail payments that they cannot afford, inflicting massive damage on them and their families as they simply lose their jobs or forfeit earnings by not being able to work… while the rich just go on with their lives.

When cash sums are required even for the lowest level of offenses, not only does the state have to pay for the cost of jailing someone unable to post bail, but people are pushed into misery for even trifling offenses. While a bevy of state judges and local prosecutors opposed the federal action, “In what the Houston Chronicle called ‘a scathing denouncement,’ a federal judge ruled Friday [4/29] that the cash bail system used in Harris County, Texas, is unconstitutional because it’s fundamentally unfair to the poor…

“Chief U.S. District Judge Lee H. Rosenthal of the Southern District of Texas ruled that the system in Harris County—which contains Houston, America’s fourth largest city by population—violates the due process and equal protection clauses of the 14th Amendment. By relying on cash bail, she wrote, the system permits offenders their freedom according to what they can afford, rather than the seriousness of their crimes or their flight risk.

“In her 193-page ruling, Judge Rosenthal ordered Harris County authorities to start releasing indigent misdemeanor defendants pending trial starting May 15. She also granted class action status to the case, covering all misdemeanants in Harris County.

“The lawsuit was filed by the Texas Fair Defense Project, Civil Rights Corps and the law firm of Susman Godfrey on behalf of Maranda Odonnell, a single mother held for two days in May 2016 on a charge of driving with a suspended license because she couldn’t afford the $2,500 bail. Two other lead plaintiffs were added later.

“Rosenthal cited a report showing fewer than 10 percent of people facing the more serious categories of misdemeanor in Harris County were released on unsecured personal bonds. She also cited more than 2,300 hours of video footage from misdemeanor probable cause hearings. One she picked out as ‘illustrative’ showed that a hearing officer wrongly calculated a defendant’s criminal history and that defendant later pleaded guilty to get out of jail. Another showed a hearing officer saying he was glad the defendant was going back to jail.

“That and other evidence suggests the county had been using financial bail as preventative detention, she said, rather than for its stated purpose of ensuring the defendant’s appearance at trial.

“Harris County had been attempting to reform its bail system prior to the lawsuit, the Chronicle notes, and several officials hailed the ruling. The county’s chief prosecutor, District Attorney Kim Ogg promised full compliance, calling it ‘a watershed moment.’ Sheriff Ed Gonzalez said his office would immediately begin to implement the order.

“To represent 15 county criminal court judges who oppose the lawsuit, the state has hired appellate attorney Charles Cooper of Cooper & Kirk in Washington, D.C. Cooper—whose name has been floated as a possible solicitor general in Donald Trump’s administration—will advise the judges on whether to appeal.” American Bar Association Journal, May 1^st. We clearly live in a nation with at least two distinctly different legal systems: one for those who can afford justice… and another for those who cannot. If you were wrongfully accused of a crime, how long would you be able to fight before running out of cash?

I’m Peter Dekom, and as a lawyer sworn to uphold justice, I am appalled at the criminal just system we have created.