I’ve been around my share of
death and dying, and so I can’t begin writing about such a tragic event as this
without first offering my prayers to the friends and family of Sandra Bland. I’m
truly sorry for your loss, and to the extent that God can use this horrible event
to open the eyes of the ignorant and to save others, then I hope that you’ll understand
my need to write about it.
A lot of people have written
about possible law enforcement and jail staff abuse and missteps, but let’s be
clear here: this case is also about money bail and the use of an insidious hallmark
of the money bail system – the bail schedule.
In America, we have a system
of justice that requires and thus includes gatekeepers – judges – who, through
their neutrality, objectivity, and oath to follow the constitutions of their
states and of the federal government, are asked to right wrongs by balancing the
actions of the government with the liberties afforded to America’s citizens. At
the very beginning of a criminal case – any criminal case, and especially a
criminal case that maybe shouldn’t be a case to begin with, judges must hold a
prompt first appearance, find probable cause for the arrest, and set bail. In
Texas, people have a right to bail, except in limited cases, and the U.S.
Supreme Court has equated the right to bail broadly as “the right to release
before trial,” and “the right to freedom before conviction.”
Criminal justice may never be
arbitrary, and to keep things non-arbitrary, we use standards. By having a set
of standards and applying those standards to each individual defendant, we make
sure that criminal justice practices and punishments remain non-arbitrary and
thus lawful. The best example of this is in death penalty jurisprudence. The
Supreme Court has said that the death penalty may never be arbitrary, and so we
have cases articulating how to create lawful standards so as to separate those
defendants who might receive that penalty from those who might not.
The same is true in bail, which
is why the U.S. Supreme Court in 1951 said that, “because the function of bail
is limited, the fixing of bail for any individual defendant must be based upon
standards relevant to the purpose of assuring the presence of that defendant.” And
when the American states read this quote, they knew exactly what the Supreme
Court was talking about. Accordingly, across America, states inserted into
their bail laws what I call “individualizing factors,” which typically require
judicial officers to look at each defendant using various criteria to determine
bail. Texas, which has a pretty lousy bail statute, nonetheless has a provision
based on individualization. It’s not as good as other states, but it
nonetheless says that whenever a judicial officer sets the amount of bail, he
or she must take certain things into account, including community safety based
on the alleged crime, the defendant’s financial ability, and the nature of the
crime – all factors that can only be ascertained through an individual
assessment of the defendant. The statute also says that “the power to require bail
is not to be so used as to make it an instrument of oppression,” but that’s a whole
other blog.
Instead of following this
statute, however, apparently the four justices of the peace in the county in
which Sandra was arrested decided to create what we call a “bail schedule.”
Bail schedules are documents ranging from one to 100 pages that typically include
only a charge and an amount of money corresponding to that charge. Under a
system based on a bail schedule, all defendants, despite whatever individual
characteristics they have, pay the same amount to get out of jail. I’ve written
about bail schedules for as long as I’ve been studying bail, and I believe that
they’re unlawful for a number of reasons and under a number of legal theories.
We’re beginning to see that the
use of secured money conditions (requiring people to pay money in order to get
out of jail) is unconstitutional. But setting those conditions pursuant to a
bail schedule is what I call “super-unconstitutional” (a word that’s perhaps
only fitting in the world of bail). By using a schedule in the case of Sandra
Bland, the justices of the peace ignored their own statute, ignored the U.S.
Supreme Court opinion emphasizing the need for individualized standards, and
even ignored our well-accepted notion that criminal justice may never be
arbitrary.
And because of that willful
ignorance, Sandra Bland sat in jail when she didn’t have to.
The government claimed that
Sandra violated the law and so it was ready to run her through the machine to
prove it to be true. But the justices of the peace violated the law, too. What are
we going to do about them?
