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.
