I’m not quite sure how this didn’t make the front page of the New York Times, because it’s the beginning of the end of money bail in America. The other day, in a federal court case in Missouri, a judge issued a declaratory judgment containing the following 36 words:
“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”
You can read about the case, and hear from my friend who filed it, Alec Karakatsanis, here: http://www.stltoday.com/news/local/crime-and-courts/settlement-in-federal-lawsuit-abolishes-cash-bail-for-velda-city/article_00e68a2a-5edd-5423-abac-1af69ae2f018.html.
These 36 words turn every single thing we’ve been doing in bail in America on its head. For over 100 years, we’ve been using money bail to detain people, both unintentionally and intentionally, and I predict now that it’s all going to end – beginning with these 36 words.
If you don’t believe me, send the words to anyone you know involved in state court bail-setting in America, and ask those people what they’d do if they had to abide by them. After an initial “holy crap” moment, they might say something like, “Well, how in the world are we going to keep those really dangerous people in jail?” The answer is that they’ll have to start employing empirical risk assessment to identify those “really dangerous” people, and then they’ll have to change their constitutional bail provisions and statutes to allow them to detain defendants based on risk. It’ll be an in-or-out system, with none of the arbitrariness and randomness of our current money-based system. It’s a wholly different release and detention scheme, and it has few of the hallmarks of bail that they’re probably used to.