Op-eds, Opinions

Strode ’21: The case for unconditional freedom

By
Op-Ed Contributor
Wednesday, November 6, 2019

As an intern on Capitol Hill this semester, I routinely provide tours to constituents visiting Washington. A popular statue and key American symbol we pass is Lady Justice. Most depictions construct Lady Justice as a blindfolded woman — a visual representation of an American belief in “equal justice under the law” that is embedded in our Constitution and culture and solidified by the Supreme Court.

But at times, in our pursuit of a more perfect union, we fail to uphold this foundational commitment. Most notably, America’s current system of cash bail violates the moral code established by Lady Justice and her exemplification of “equal justice under the law.” Additionally, our current bail system challenges other American commitments, such as every citizen’s right to the presumption of innocence and to due process guaranteed by the Fifth Amendment to the Constitution.

For the unacquainted, bail is the fee individuals must pay to the government to secure their release from jail after being arrested. Assuming the accused posts their bail without a bail bondsman, this amount is eventually returned to the individual upon the completion of their case. But from my own personal experiences with posting bail for family members, the return of one’s personal funds can take weeks, even months, after the conclusion of one’s case because of improperly supported government staff. For most Americans, not having immediate access to their own money is impoverishing. The central defect of the cash bail system is that it forces individuals lacking disposable funds to stay in jail while they await trial and future judgment — causing the most harm to people in the lower and middle classes. Thus, cash bail creates too significant of a regressive financial burden to defend its existence.

The primary purpose of bail is to ensure that the accused will attend their court dates, operating under the false assumption that the accused will not appear when summoned without any “skin in the game,” or financial incentives. While a seemingly benign concept, it fails to recognize the reality of the U.S. criminal justice system and its all-encompassing nature.

The accused inherently bear financial and emotional incentives to make their court dates and resolve the matter in a timely fashion. As anyone who has ever attended court understands, these hearings are disruptive and lengthy endeavors. Every court appearance can mean child-care costs, missed work or a plethora of other consequential and impactful life disruptions. After one’s arrest, the accused who pleads not guilty see a minimum of three different court dates: the first appearance after their arrest, a “readiness” pre-trial hearing and the actual trial. But depending on the state and their unique processes, the severity of the alleged crime and schedules of the often over-encumbered and under-staffed prosecutor’s and public defender’s offices, many more court dates could occur to resolve the matter. I saw this phenomenon often as an intern in a prosecutor’s office.

Skipping court would be against one’s self-interest because it prolongs the matter, brings more legal trouble, and ultimately, more financial woes. In fact, a recent case study of the Bronx — where a nonprofit organization, using its own money, bailed out 150 people — demonstrates that even without financial incentives, over 90 percent of the accused individuals made every single court date. This hard data challenges the notion that the accused will skip their court dates without “skin in the game.”

In our current cash bail system, those who plead not guilty and are unable to post bail could potentially sit in jail for months, even years, before the conclusion of their cases. When innocent citizens who cannot afford bail are forced to sit in jail while awaiting trial, the oppressive situation could coerce them into pleading guilty simply to end the disruptive ordeal. These individuals must then live with a criminal record — a designation possibly affecting housing opportunities, employment prospects and even access to Federal Pell Grants. This effectively criminalizes poverty by punishing those who lack the resources and privilege to post bail, miss work and forego their familial obligations to attend their trial. This disproportionately afflicts low-income individuals, and by extension, people of color.

The cash bail system violates our Fifth Amendment right to due process because it restricts the liberty of American citizens without a guilty verdict from a jury of their peers. This injustice also challenges the idea of “equal justice under the law” because wealthy citizens — like Harvey Weinstein — can simply avoid incarceration by posting bail, a privilege not afforded to many working-class Americans should they find themselves under the scrutiny of the law.

Activists have proposed two primary alternatives to the cash bail system. The first and more radical notion is to eliminate the transaction-oriented concept of cash for bail. This system looks to create a binary decision: bail or no bail. Most notably, Washington, D.C. adopted this method in the 1990s. To determine whether or not bail should be granted, our nation’s capital now relies on risk assessment algorithms that analyze an abundance of metrics such as one’s risk of flight or danger to society. But critics express concern over potential inherent biases in the algorithm against people of color or indigent individuals. This option attempts to preserve everyone’s freedom by protecting people from unnecessary jail sentences while simultaneously safeguarding society from the possibility of dangerous persons posting bail due to their wealth.

The second proposed system remains more revisionist in nature. This arrangement would replace cash bail with unsecured loans or promissory notes. Rather than having to post a bond upfront with cash, $5,000 for example, the accused would sign a contract where they would only pay the fee if they skipped their court dates.

The cash bail system hurts all Americans. It forces society to house cash-strapped folks — imposing a cost upon all taxpayers. Furthermore, it operates as a financial double negative because it costs money to house the accused in jail while potentially creating an economic hole at the incarcerated person’s place of employment — further compounding external damages to society. Regardless of one’s preferred solution, that’s for you and your fellow constituents to decide, eliminating the regressive cash bail system is a strong step toward establishing a more perfect union.

Ronnie Strode III ’21 can be reached at ronnie_strode@brown.edu. Please send responses to this opinion to letters@browndailyherald.com and op-eds to opinions@browndailyherald.com.

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