Saturday, March 26, 2016

Bail Reform, Discrimination, and Richard Nixon

The problem with blatant, overt discrimination is that people are usually too smart to admit to it. Well, most people. This week, Dan Baum wrote a piece for Harper’s Magazine, found herein which he quotes from his interview with John Ehrlichman, one of Richard Nixon’s key aides and nominee for best leading actor in the Watergate saga. In his interview, Ehrlichman said that Nixon wanted to use something called the “war on drugs” to go after his biggest enemies – at the time, so-called anti-war hippies and African Americans. Ehrlichman said:

We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

And it was pretty big lie, huh? The war on drugs bedevils us even today. For some reason, doing horrible things to people and lying about it while its happening can keep a thing rolling for a long time. Right before he died, I asked my dad what he and others were thinking when they nominated Richard Nixon in 1968 (dad was a delegate). His response? “We didn’t really know he was a criminal back then.” And that’s the problem, isn’t it? We’d like to think that our leaders won’t lie to us, because if they’re lying, then they’re lying about really important things, and we know that those sorts of lies can tear our whole society apart.  

So we have a rare admission to blatant, overt discrimination using the war on drugs to go after hippies and blacks. What does that tell us about bail?

First, it tells us that we may have to wait decades before someone opens up and says that they were fighting for money bail because it kept the poor and minorities in their place – disrupted their communities, vilified them. How else can we really explain a practice that is so monumentally unfair and that simply doesn’t work to do whatever lawful thing it’s supposed to do? Well, besides making a profit, that is. But we can’t wait decades.

Second, even if we wait, we may never even have an admission.

A few months ago I was in a place where a judge admitted to setting a high money bond to detain someone, and where a prosecutor admitted to asking for a high money bond to “start the punishment.” Both of these things are clearly unconstitutional, and yet the judge and the prosecutor actually admitted to doing them. How far away can we really be, then, to even more contemptible reasons for setting an unattainable money bond if we just dig a bit deeper?

The only way to avoid all of this is to take the tool away. The traditional money bail system must end. It must end for about a hundred reasons, but especially for the fact that money bail has the potential to be used for really, really bad purposes.