Bail

Orem Nimni reviews Alec Karakatsanis’ new book, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System:

Karakatsanis opens his book with a scene in a New Orleans courtroom, where a man is accused of a crime and ordered held on a $20,000 bail. Because he can’t pay $20,000, the man will stay in jail until trial. That he can’t afford $20,000 is no surprise: about 40 percent of American families can’t come up with even $400 in an emergency, much less $20,000. Most of the criminal punishment system operates to the heavy disadvantage of poor people. If you only have money for silly things like food and shelter you likely won’t be able to pay off a ticket (and the resulting unpaid debt can get you put in prison), let alone your bail. Hundreds of thousands of people are held in cages simply because they can’t “make bail.” That means they are held pre-trial, convicted of nothing, just because they can’t pay the state the amount set by the court.

This wealth-determinate caging system also has harsh downstream consequences beyond the fact of being in jail itself. If you’re imprisoned because you couldn’t make bail, you’re likely to lose your job because you don’t show up, and you’re likely to lose your house because you can’t pay rent. You may lose custody of your kids since you can’t care for them effectively behind bars. Pre-trial detention also results in consequences for the criminal case itself. Those locked up pre-trial are more likely to accept a plea agreement (even a bad one) just to get out of jail, and statistics demonstrate that those held pre-trial, as opposed to those who are released, are more likely to be convicted. It should be troubling to anyone that cares about justice that wealth (and race) is a major determinant of a person’s outcomes in the criminal system.

I’ve actually found discussions of bail to be a good entry point for talking about the cruelty of the criminal punishment system. It’s just so intuitively unjust. “That’s crazy!” most people say upon learning that you can be held for ransom by the state, potentially for years, before having a trial. “That must be illegal!” Most lawyers would scoff at this last statement, because bail is just so central to the criminal system and its existence seems like an immutable fact of nature.

Of course the reason bail was invented was that accused criminals have a habit of not showing up for trial, and I'm not sure what Nimni and Karakatsanis propose to do about that. But I agree that the bail system as it exists is awful.