Monday, January 21, 2013

Bail, Martin Luther King, Jr., and Pretrial Justice

I suppose it's fitting that I would post my first blog about bail and pretrial justice on the holiday to honor Dr. Martin Luther King, Jr. That's because, in many ways, the pretrial justice reform movement of this century is akin to the civil rights movement of the 20th Century, with committed individuals urging cultural changes to a system manifested by disparate state laws, unlawful practices, and uniformed officials pursuing policies that negatively affect basic human rights. That era, too, had its success stories -- model jurisdictions -- that people could look to for guidance leading toward a nation of justice for all people, including the most vulnerable among us.

During the mid 20th Century, many people credited Dr. King with creating those models by traveling to assist and support individual jurisdictions as crises would erupt. Naturally, people began to equate Dr. King with the proverbial Good Samaritan, who stopped to help a single traveler who was robbed and beaten on the Road to Jericho. To this comparison, he reportedly replied as follows to his friend and fellow civil rights leader, Andrew Young:

"I think the Good Samaritan is a great individual. I, of course, like and respect the Good Samaritan . . . but I don't want to be a Good Samaritan. You see . . . I am tired of picking up people along the Jericho Road. I am tired of seeing people battered and bruised and bloody, injured and jumped on, along the Jericho Roads of life. This road is dangerous. I don't want to pick up anyone else, along this Jericho Road; I want to fix . . . the Jericho Road. I want to pave the Jericho Road, add street lights to the Jericho Road; make the Jericho Road safe (for passage) by everybody." 

Like the ancient road to Jericho, the road to pretrial justice is in need of a global fix. It's not enough that we see one jurisdiction here, one there, doing good work to make the administration of bail more legal, rational, transparent, and fair. We need big projects -- national and state-wide in scope -- to fix the the problems associated with bail that have plagued America since even before its founding. 

In 1951, Judge Learned Hand stated, "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice." He said it when speaking about poverty and legal aid, but the quote took on a new life in the first generation of bail reform in the 1960s. It's quite simple -- the traditional system of using money at bail makes it so only those with means can obtain pretrial freedom, a right that each of us holds in the vast majority of cases. Money bail rations justice so that only the rich receive it. This is wrong, and if Dr. King were here today, I think he would agree.