Sandra Bland: Her Bail Amount “Was Not Significant”

No, I didn’t say this – a bail insurance company lobbyist did. The quote, in full, is actually, “The issue of bail had nothing to do with this person’s suicide, in my opinion. The amount was not significant and the family was working with a bondsman to post bail.”

This gives you a bit of insight into the people behind our traditional money bail system. Bail insurance company lobbyists could really care less about the humans who bear the brunt of a broken system of bail in America. Let’s break this quote down.

“Not significant?” Well, it kept her in jail, so I think that’s pretty significant. The most interesting conversations I have with commercial bail people happen when they talk about amounts that are “significant” or “reasonable.” Some time ago, a commercial bail guy came to our local county justice meeting and, with a completely straight face, said, “The other day I saw a judge set bail at $50,000, which is reasonable, but another judge set another bail at only $500, and that’s just wrong.” To a bail insurance company lobbyist, amounts are reasonable when they can make money off of them, and they’re unreasonable when they can’t. And only an overpaid lobbyist could ever say that a $5,000 financial condition isn’t significant.  

“Working with a bondsman?” Well, there’s an article out there saying that some bondsman actually called Sandra’s mother, but that was it. I assume the phone call went something like this: “Your daughter’s bail is $5,000, so to get her out of jail you’ll have to come up with a $500 non-refundable fee for me and then put up some collateral to cover the rest.” These kinds of conversations happen every day across America, and they’re why it takes an average of 10 days for people to bond out through commercial sureties. And in those ten days, research has found, a lot of really bad things can happen.

“The issue of bail had nothing to do with [Sandra’s] suicide?” The bail insurance guy says that “there were clearly other issues [going] on in this person’s life.” What kind of issues? Everybody has issues going on in their lives, and no matter how significant those issues are, you can bet that if the person is stuck in a cage, incarceration is issue number one.  

This is the problem with bail insurance companies – the groups who lobby hard to keep the commercial money bail system alive in America – they simply don’t have any compassion or common sense. It’s a problem that we’ve had with this industry ever since we created it in 1900. And it’s a big problem in Texas, which is kind of an enclave for bail insurance companies and the lackeys that these insurance people hire to try to muddle and spin the tragedy of money bail.

Let’s face it. There’re at least three big issues that need to be addressed concerning the death of Sandra Bland: (1) her arrest; (2) the nature of her detention; and (3) the money bail that kept her in jail. Because bail insurance companies make money on number three, they’ll be hoping that everyone – including you – will focus only on numbers one and two.

Don’t do it. 

Sandra Bland and the Tragedy of Money Bail

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?