Ted Lieu’s Excellent Bail Bill-- And Why We Should Care

Rep. Ted Lieu (D-CA)

-by Dorothy Reik

Debtor’s prisons may be outlawed but don’t tell that to the 450,000 or so poor people sitting in jail right now because they are too poor to pay their bail, not because they have been found guilty of anything. They might as well be in a debtor’s prison-- there’s very little difference. They are there because they can’t pay. Thanks, in part, to an article in the NY Times, The Bail Trap, which starts with the tale of a Brooklyn man finally getting his life together who was arrested for possession of a soda straw.

"Criminal justice," President Obama said in a speech to the N.A.A.C.P. last month, "is not as fair as it should be. Mass incarceration makes our country worse off, and we need to do something about it." Two days after the speech, Obama became the first sitting president to visit a federal prison, meeting with convicts in a corrections institution in El Reno, Okla. The setting was dramatic, but mass incarceration isn’t actually a federal problem. Of the 2.2 million people currently locked up in this country, fewer than one in 10 is being held in a federal prison. Far more are serving time in state prisons, and nearly three-quarters of a million aren’t in prison at all but in local city and county jails. Of those in jails, 60 percent haven’t been convicted of anything. They’re innocent in the eyes of the law, awaiting resolution in their cases. Some of these inmates are being held because they’re considered dangerous or unlikely to return to court for their hearings. But many of them simply cannot afford to pay the bail that has been set.

Occasionally, these cases make the news. In June, Sandra Bland was found dead in her cell in Texas after failing to come up with $500 for her release. But often, they go unnoticed. The federal government doesn’t track the number of people locked up because they can’t make bail. What we do know is that at any given time, close to 450,000 people are in pretrial detention in the United States-- a figure that includes both those denied bail and those unable to pay the bail that has been set. Even that figure fails to capture the churn of local incarceration: In a given year, city and county jails across the country admit between 11 million and 13 million people. In New York City, where courts use bail far less than in many jurisdictions, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail. And while the city’s courts set bail much lower than the national average, only one in 10 defendants is able to pay it at arraignment. To put a finer point on it: Even when bail is set comparatively low-- at $500 or less, as it is in one-third of nonfelony cases-- only 15 percent of defendants are able to come up with the money to avoid jail.

Bail hasn’t always been a mechanism for locking people up. When the concept first took shape in England during the Middle Ages, it was emancipatory. Rather than detaining people indefinitely without trial, magistrates were required to let defendants go free before seeing a judge, guaranteeing their return to court with a bond. If the defendant failed to return, he would forfeit the amount of the bond. The bond might be secured-- that is, with some or all of the amount of the bond paid in advance and returned at the end of the trial-- or it might not. In 1689, the English Bill of Rights outlawed the widespread practice of keeping defendants in jail by setting deliberately unaffordable bail, declaring that "excessive bail shall not be required, nor excessive fines imposed." The same language was adopted word for word a century later in the Eighth Amendment to the United States Constitution.

But as bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it. Unsecured bond has become vanishingly rare, and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front-- what’s called "money bail" or "cash bail"-- or pay a commercial bail bondsman to do so. For relatively low bail amounts-- say, below $2,000, the range in which most New York City bails fall-- the second option often doesn’t even exist; bondsmen can’t make enough money from such small bails to make it worth their while.

...The long-term damage that bail inflicts on vulnerable defendants extends well beyond incarceration. Disappearing into the machinery of the justice system separates family members, interrupts work and jeopardizes housing. "Most of our clients are people who have crawled their way up from poverty or are in the throes of poverty," Scott Hechinger, a senior trial attorney with Brooklyn Defender Services, says. "Our clients work in service-level positions where if you’re gone for a day, you lose your job. People in need of caretaking-- the elderly, the young-- are left without caretakers. People who live in shelters, where if they miss their curfews, they lose their housing. Folks with immigration concerns are quicker to be put on the immigration radar. So when our clients have bail set, they suffer on the inside, they worry about what’s happening on the outside, and when they get out, they come back to a world that’s more difficult than the already difficult situation that they were in before."

...In early 2013, Jonathan Lippman, chief judge of the State of New York, decided that the business-as-usual approach to setting bail could not be tolerated any longer. "We still have a long way to go before we can claim that we have established a coherent, rational approach to pretrial justice," he said in his annual State of the Judiciary address. "Incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation." Lipp­man sent a package of proposed legislation to reduce the reliance on cash bail to lawmakers in Albany, and he lobbied for the reforms hard in the press. His efforts went nowhere. "Zero," Lippman says, shaking his head. "Nothing." Lawmakers had no appetite for bail reform.

Two years later, that may be changing. This summer, the New York City Council took a tentative step toward reform by earmarking $1.4 million for a citywide fund to bail out low-level offenders. The fund, proposed with much fanfare by Speaker Melissa Mark-Viverito in her State of the City address in February, is modeled on a number of smaller bail funds around the city. The oldest of these, the Bronx Freedom Fund, was established in 2007 in association with the Bronx Defenders, a public-defender organization. The founders shut down the fund after only a year and a half, after a judge argued that it was effectively operating as an unlicensed bail-bond business. But before they did, the fund bailed out nearly 200 defendants and generated some illuminating statistics. Ninety-six percent of the fund’s clients made it to every one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund’s clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.

...The only truly meaningful reform, many observers agree, is to take money out of the bail process entirely. Lippman has been championing this idea for several years. "You have to eliminate cash bail," he says. The ramifications of such a move are far-reaching. Without bail-- and the quick guilty pleas that it produces-- courts would come under significant strain. "The system would shut down," Goldberg says. "A lot of the 250 people who were waiting to be arraigned in Brooklyn last night would all be coming back to court soon to go forward with a trial for a misdemeanor that no one has any interest in pursuing." This crisis, Goldberg believes, would be a good thing. "You want pressure on the system. You want everyone involved to be reconsidering. Because of how much it could clog the system, you might have people on high telling cops to stop picking people up for an open-container violation, because 'I don’t want to deal with it in my courtroom.'"

In response to discussions with his L.A. area constituents, Congressman Ted Lieu came to focus on this injustice and when Ted finds out about a problem you can be sure there will be a solution coming soon. An Afghan translator stranded because his paperwork is sitting on a desk-- now he is in Connecticut and his family is there too. Glyphosates in Round Up are killing us-- there is an EPA hearing being scheduled. So when Ted realized what was going on with our country’s bail business (and it is a very lucrative business indeed) we got the NO MONEY BAIL ACT of 2016! This morning on Periscope we could watch as the bill was announced. It was a production with co-sponsors (all freshmen for “fresh thinking” according to Ted, like Bonnie Watson Coleman of New Jersey who helped Ted get elected freshman class president, and Ruben Gallego of Phoenix) and supporters gathered around, so many that they could not all get a turn at the microphone. The list is here.

Sandra Bland died because she could not make bail. So did Kalief Browder. Both committed suicide-- at least we know Kalief did quietly, incurably, depressed after three years in jail, much of it in solitary confinement, for the theft of a backpack which he did not commit. The charges were finally dropped but it was too late.

They are not the only ones. They were too poor to buy their freedom. Neither was guilty of a crime. Ted’s quiet outrage was evident as he laid out the need for this legislation. The good news is that it seems to be the year of reform for “criminal” justice system-- a system that itself is criminal and hardly “just”-- one in which the crime often starts with an arrest rather than ending with one.

Ted: "America’s broken criminal justice system goes against the core of our values. We cannot both be a nation that believes in freedom and equal justice under the law, yet at the same time, locks up thousands of people solely because they cannot afford bail. We cannot both be a nation that believes in the principle of innocent until proven guilty, yet incarcerate over 450,000 Americans who have not been convicted of a crime. Throughout the nation, those with money can buy their freedom while poor defendants stay behind bars awaiting trial. Further horrifying, many people decide to plead guilty purely to get out of jail because they cannot afford bail. America should not be a country where freedom is based on income. We are better than this."

Most Members of Congress aren't worth keeping and should be defeated at the polls-- but some are real public servants, like Ted Lieu... in fact everyone on this list of worthy incumbents: