Wednesday, August 3, 2016

Burning Bridges?

The recent studies showing the ill effects of money on the pretrial release and detention decision remind me, once again, to address an argument I occasionally hear from the bail insurance dudes. First they say nobody’s in jail due to money. Well, that’s a load and they know it, so they move on to argument number two.

Argument number two says that if a defendant’s in jail due to money, it’s not because he’s too poor – it’s because he has lots of previous problems and has “burned all his bridges” with family and friends who would typically come to his aid by fronting the money. It’s a derivation of the “circle of love” they like to talk about, but I suppose you’d have to call this a circle of hate. Or, like, a ring of resignation. You know . . . something.

Setting aside the fact that having “burned one’s bridges” is not a constitutionally valid purpose for detaining someone pretrial, the argument also misapprehends the most egregiously unlawful part of bail today, which is the fact that the money amounts are typically completely arbitrary.

So the argument by the lobbyist goes something like this: if a defendant gets released, he hasn’t burned his bridges, and so it’s okay he’s out (even though the same lobbyist might whine that the amount might have been “too low.”) Okay, so let’s say that the amount showing “no burned bridges” is $1,000. The problem is that a judge can simply add another zero – in fact, he or she can do that for virtually any reason or no reason under our current system – and the result can be much different. Now he’s in, and the bail lobbyist says that’s okay because he burned his bridges. Really? The new amount means that the same defendant now suddenly has burned bridges? Or could it possibly mean – and this is just a guess here – that he and his circle simply can’t afford the $10,000 but they can afford the $1,000? So the bridge burning has little to do with the defendant; it’s apparently really only tied to the amount chosen by the judge, which is arbitrary and subjective. I mean, what if the judge started with $10,000 (leading to detention) and then moved it down to $1,000 (leading to release)? Can we now say that the defendant, while in jail, has done the opposite of burning bridges? He has, instead, created new positive relationships?

Because I’ve heard this argument before, the next part says, “Well, when the judge set the $10,000 financial condition, that judge knew that defendant had a bad past and so the money was exactly the proper amount to be beyond reach of the defendant and his family.” Now, putting aside the fact that setting an amount to be purposefully beyond the reach of a defendant or his family is unconstitutional, I also think it’s putting a lot of faith into a judge to be able to determine not only the defendant’s wealth, but everyone else’s. And remember, if that judge only bumped the amount up to $2,000, the defendant might still make it and then everyone would still have to say that he didn’t have any burned bridges. Do you see how slippery this gets? Based on the bail lobbyist’s theory, this defendant might have burned his bridges at exactly $1,323.47, but not at $1,1145.48. And the judge set it at $10,000, so we’ll never really know.

Or maybe – just maybe – there are certain amounts people can afford and certain amounts people can’t afford. Welcome to a common sense explanation of money bail, which says that if you use a money-based system, people with money will get out and people without money will stay in.

Historically, money at bail became arbitrary after the Norman Invasion. Before the Normans, all punishments were fines, and so if someone set a bail amount, it matched the amount of the fine. Once the Normans got rid of the fine-as-punishment system, moving toward a system that used more capital and corporal punishment as well as prison, nobody knew what number to “set.” What should the “bail” be for someone facing a thirty silver piece fine? Easy. Thirty silver pieces. But what about a person facing a flogging? Who knows? And it’s been that way ever since. In the 1950s, Caleb Foote even commented on how the judges’ use of round numbers hinted at the inherent arbitrariness of money bail.  

Studies consistently show what logic should suffice to tell us: there’s an inverse relationship between the amount of the financial condition and the ability to obtain release pretrial, with release going down as money goes up. Think of it this way. If a judge set everyone’s financial condition at $1, practically everyone would get out and what their families felt about them wouldn’t factor into it. And if that same judge set every bond at $10 million cash, practically everyone would be stay in, and what their families felt about them wouldn’t really factor into it, either. Most people would say that the last example is clearly unconstitutional and would never happen, but we come close to that every day in jurisdictions with bail schedules having amounts in the hundreds of thousands of dollars. Oh, yeah, and we also see plenty of million dollar bonds.

Other studies allow us now to actually measure a defendant’s risk of flight and risk of committing new crimes, the only two constitutionally valid purposes for limiting pretrial freedom. And using those studies, researchers have gone into jails and found low and medium risk defendants who can’t get out due to money. In jurisdictions using money bail, you also see extremely high risk defendants getting out simply by paying money. Oh, and by the way, none of those risk instruments have “burned bridges” as a statistically predictive risk factor.

This argument – that if a defendant can’t pay, it’s because he’s burned his bridges and so he must be an unmanageable risk for flight or new crimes while on release – is a backassward argument attempting to justify an arbitrary money system that has nothing to do with either flight or public safety. There’s one good way to measure risk – through a statistically-derived risk assessment tool. There’s one bad way – through how much money a defendant or his family has. And there’s one stupid way – through how many “bridges” we think a defendant has “burned.”

By the way, always remember that one way to make a financial condition non-arbitrary is to make it affordable to the particular defendant (or, I suppose, the defendant’s family). Seems easy, but judges have been unable or unwilling to do that for the past 150 years.