Bail Rules Should Be Changed

| by Nik Bonopartis
A bail bondsman's officeA bail bondsman's office

Kalief Browder spent three years in New York's Rikers Island jail, two of them in solitary confinement, because he couldn't afford to post bail after he was accused of stealing a backpack. The ordeal -- in which he was beaten repeatedly by fellow inmates and corrections officers -- traumatized him so much, he took his own life two years after he was released.

Browder was 16 years old when he was arrested. He was questioned without a lawyer and served the equivalent of a prison sentence despite never being convicted, let alone having his day in court.

Since a 2014 story in the New Yorker documented his ordeal, his case has become emblematic of a broken bail system that can ruin people's lives, even over minor offenses.

As an editorial in The Atlantic notes, over 60 percent of U.S. jail inmates haven't been to trial, and as many as 9 in 10 are stuck in jail because they can't afford bail. The majority of those cases involve low-level crimes like marijuana possession and minor theft charges.

Not only is jail a massive drain on taxpayers -- who foot the bill for the $14 billion it costs to house pre-trial detainees every year -- and a major contributor to overcrowding, it's also ruinous for the people who get caught up in the system.

One of those people is Baltimore's Dominick Torrence, who was jailed on $250,000 bail after he was charged with disorderly conduct and rioting during the fallout from the Freddy Gray case. (Gray, who had been arrested for a minor charge two months earlier, died in police custody, sparking widespread outrage.)

“That’s something you get for murder or attempted murder,” Torrence, 29, told the New York Times in June of 2015, while he remained in Baltimore Central Booking. “You’re telling me I have to take food out of my kid’s mouth so I can get out of jail.”

Authorities kept Torrence in custody for a month before dropping the charges. He was one of hundreds of protesters who were arrested, held, then released after the Freddie Gray protests, according to Vice. Yet a month -- or even a few days -- is long enough for suspects to lose their jobs, miss rent payments, or miss other crucial responsibilities.

For people who are barely making ends meet, the result can be disastrous financially and emotionally.

“It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” Paul DeWolfe, the Maryland state public defender, told the Times.

DeWolfe isn't being dramatic. Pre-trial custody is tantamount to punishment for the majority of defendants, people who are still innocent by every legal definition. Oftentimes, it's equal to serious punishment.

That's not how bail is supposed to work. In the U.S. criminal justice system, which promises people the right to a fair and speedy trial, bail is supposed to be proportionate to the alleged crime committed, and the flight risk -- if any -- of the defendant.

Jailing a local protester on a bail amount usually reserved for alleged murderers isn't how it's supposed to work. Punishing a woman with $5,000 bail after a traffic stop isn't how it's supposed to work.

Just as disturbingly, as The Atlantic story notes, many jurisdictions don't credit convicts with time served in jail, and some don't even keep track of how long defendants are kept languishing in jail cells as they await trial.

The entire system amounts to a form of punishment before punishment, before guilt is even established or the accused even has a chance to have his or her say in court. It's also heavily weighted in favor of people with money, who can simply pay bail up front or use assets as collateral.

"The bail system in most states is a two-tiered system," Phil Telfeyan, founder of Equal Justice Under Law, told the Associated Press. "One for the wealthy and one for everyone else."

Telfeyan's group has won several small victories in a handful of counties throughout the U.S., successfully suing to get bail dropped entirely for people accused of low-level, nonviolent crimes.

The group's ultimate goal is to abolish the bail system entirely.

Legal scholars can debate the feasibility of that goal, but one thing's obvious -- the system needs to be reformed. Whether that happens through the courts or through legislation, the important thing is making sure there's never another Kalief Browder.

Click here for the opposing view on this topic.

Sources: The Atlantic, The New York Times (2), Vice, VERA Institute for Justice, AP, New Yorker / Photo credit: Wikimedia Commons

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