Wealth-Based Detention
By Albert B. Kelly
Recently, a colleague sent me an article from “The Guardian” of all places and the article was highlighting the fact that Illinois is about to become the first state to completely end wealth-based pre-trial detention. I am not familiar with “The Guardian” except to say that it is a British-based news outlet and naturally I was surprised that they were covering things in the states and interested in their take.
Apparently Illinois passed something known as the “Pre-Trial Fairness Act” which makes pre-trial detention the exception rather than the resting position of the criminal justice system in that state. This type of reform is in line with bail reform- something New Jersey has taken-up in recent years, but it appears to be far more comprehensive.
The article pointed to the case of a woman who had the choice of plunking down 10% of a $250,000 bond as a deposit (i.e. $25,000) or spending the time in jail waiting for her trial. She did not have the money and ended up spending 571 days in jail before taking a plea deal just to get on with her life. How many people are sitting in jail not because they’re actually guilty, but because they couldn’t post bond and get to their day in court.
Keep in mind that we like to think we’re somehow protected by the whole “innocent-until-proven guilty” notion but that matters only if you can pay to stake out that position. In a country that supposedly prides itself on our exceptionalism, how is it that we’re alright with the idea that “innocent-until-proven-guilty” coexists alongside of losing your employment, apartment, the comfort of family; possibly your children and whatever else was the substance of your daily life all because you can’t post bail?
Maybe those consequences belong to those who are convicted of a crime, but are we really comfortable with those consequences for those who are innocent in the eyes of the law? The wealthy and nearly wealthy can don the cloak of innocent-until-proven-guilty, that intermission between being charged and going before a jury of their peers, but for everyone else it’s a safe bet that your life will unravel at a frightening speed as will the lives of everyone who depends on you for support, love, or a roof over their head.
Supposedly the whole concept of bail is centered on the notion that without it, people simply won’t show up for court, but if they have to plop down some money or go into serious debt, there’s no way they’ll miss their court date. But according to the article, there are many studies that show that bail has little to do with whether or not someone shows up for their court date. In fact, people released ROR (on their own recognizance) showed up for trial at much the same rate as those posting bail.
We can’t be so sure that the whole thing isn’t half a racket designed to make money for various people up and down the criminal justice food chain in the same way that privatizing jail is a racket for those who believe there’s good money to be made off the poor and marginalized. New Jersey has done a good job with eliminating some of the inequalities attached to jail- especially as it relates more petty offenses.
But historically, the people who have suffered most under pre-trial incarceration are black and Hispanic. As I’ve long argued, one of the ways we keep a perpetual underclass in this country is through the weight of the criminal justice system. If that’s true, then one of the ways to address these problems is by substantial and consistent reform.
This requires serious and open-minded people to weigh how those reforms are to be structured and implemented because it requires balance. By balance what I mean to say is that decent people of all stripes don’t want violent and destructive people out on our streets and we must have mechanisms in place to deal with such cases to protect our communities. But for the many others who have a legitimate case to make, they shouldn’t have imposed on them what is rightly reserved for the genuinely guilty.
Beyond that, we need to think seriously about wealth-based detention because the reality that wealth, regardless of one’s guilt or innocence, is the deciding factor in our system really undercuts everything we cherish when we think about the idea of justice.