All Fail Bail

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

Eighth Amendment to the Constitution (within the Bill of Rights)

Today’s blog is focused on the bail part of the above basic right. To understand where that limitation came from – a British Parliamentary act passed in 1689 – it is useful to understand the “why.” “In England, sheriffs originally determined whether to grant bail to criminal suspects. Since they tended to abuse their power, Parliament passed a statute in 1275 whereby bailable and non-bailable offenses were defined. The King's judges often subverted the provisions of the law. It was held that an individual may be held without bail upon the Sovereign's command. Eventually, the Petition of Right of 1628 argued that the King did not have such authority. Later, technicalities in the law were exploited to keep the accused imprisoned without bail even where the offenses were bailable; such loopholes were for the most part closed by the Habeas Corpus Act 1679. Thereafter, judges were compelled to set bail, but they often required impracticable amounts. Finally, the English Bill of Rights (1689) held that ‘excessive bail ought not to be required.’ Nevertheless, the Bill did not determine the distinction between bailable and non-bailable offenses. Thus, the Eighth Amendment has been interpreted to mean that bail may be denied if the charges are sufficiently serious. The Supreme Court has also permitted ‘preventive’ detention without bail. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that ‘the government's proposed conditions of release or detention not be 'excessive' in light of the perceived evil.’ In Stack v. Boyle, 342 U.S. 1 (1951), the Supreme Court declared that a bail amount is ‘excessive’ under the Eighth Amendment if it were ‘a figure higher than is reasonably calculated’ to ensure the defendant's appearance at trial.” Wikipedia.

Bail has taken the form of liens on homes, releases of prominent citizens or at least citizens with known assets on “their own recognizance,” and, of course, traditional postings of bail. A business has grown out of this right: bail bondsmen. We’ve had television shows over the years based on this profession, from Steve McQueen’s The Bounty Hunter to “reality TV’s” Dog, the Bounty Hunter based on Duane “Dog” Chapman. The concept is simple. The bonding company charges a fee, generally 10% of the amount of the court-ordered bond, to guarantee the court’s posted amount, which is forfeited unless the accused actually appears. Thus where defendants disappear, the bonding entity has to produce the no-show or lose the full amount of the court’s bond amount. Good television, but maybe not so good when it comes to fairness and justice.

You see, over the years, courts have used bonds with a bit more in the way of punitive undercurrents, posting amounts that they know the defendant cannot procure (even that 10% is often prohibitive if the bond amount is high enough or the defendant truly cannot afford it at any level). A prisoner under bond is more likely to accept a plea, may wind up serving the entire time as if convicted anyway and is clearly more vulnerable and less able to cooperate in his or her defense. Bottom line and very obviously, those least likely to post bonds are poor with a heavy consequence for racial minorities with the least economic means. The system has become horribly slanted against those unable to afford to play by its rules.

It’s a really, really big problem, and it costs taxpayers a fortune in incarceration costs. The economic costs to families losing a breadwinner are incalculable, further taxing public social services. According to the DOJ’s National of Corrections, on any given day, there are half a million pre-trial detainees in the United States, the largest number on earth. The modern system of bail really doesn’t seem to benefit society or defendants. And when you think of conditions in most major urban jails, the thought that innocents are spending time in such cruel institutions should be reprehensible to most of us. It’s time for a change.

“Colorado and New Jersey recently voted to revamp their bail systems, while in New Mexico last November, the State Supreme Court struck down a high bail it said had been set for the sole purpose of detaining the defendant.

“This year, the Department of Justice weighed in on a civil rights lawsuit challenging bail amounts based on solely on the charge, calling them unconstitutional. In several states, including Connecticut, New York and Arizona, chief justices or politicians are calling for overhauls of the bail system.

“The money bail system is supposed to curb the risk of flight by requiring defendants to post bond in exchange for freedom before trial. But critics say the system allows defendants with money to go free even if they are dangerous, while keeping low-risk poor people in jail unnecessarily and at great cost to taxpayers.

“For those who cannot afford to post bail, even a short stay in jail can quickly unravel lives and families. Criminal defendants are overwhelmingly poor, many living paycheck to paycheck, and detention can cause job losses and evictions. Parents can lose custody of their children and may have a difficult time regaining it, even when cases are ultimately dropped. And people in jail who are not guilty routinely accept plea deals simply to gain their freedom, leaving them with permanent records.” New York Times, June 10^th.

In short, the undercurrents of unfairness that the Eighth Amendment’s limitations on bail were meant to address are simply ignored by too many courts. There is a complex balance between a constitutionally-required speedy trial to giving a defendant enough time to prepare for an adequate defense. Crowded court calendars don’t help. We seem to have assembly-line simulated justice. We go through the motions, but for most defendants, we expect convictions.

We have too many offenses, very long sentences (among the longest in the world) and for a nation with only 5% of the total global population, it is hard to justify why we have a quarter of the earth’s incarcerated prisoners. Too many convictions are drug-related. How many innocents have accepted “shorter sentences” rather than face an unpredictable judicial system that threatens vastly longer sentences if there is a trial. Is this really a nation where innocents are treated fairly? Not to anyone looking at statistics or has ever visited or been themselves incarcerated in a jail or prison. Our entire system of criminal justice seems to have become “cruel and unusual” against the standards of most nations in the developed world. It is also the world’s most expensive at almost every level of measurement, so taxpayers rejoice!

I’m Peter Dekom, and unless we stand up and rail against our own human rights abuses, care about our fellow citizens the way we care about ourselves, nothing will change!