Simply not being able to afford to pay the gatekeeper is a positively medieval way to determine who walks free in our modern society

Gavin MacFadyenThink everyone in jail deserves to be there? Think again.

Millions of people believe that everyone in jail is probably guilty of something. These ‘law and order’ types embrace incarceration as a deterrent to crime, even if it leads to dangerous and inhumane overcrowding.

Challenge them with the facts that deterrence is hardly a given – that incarceration may lead to a greater rate of recidivism – and they will fall back on the argument that retribution for crimes committed is in itself enough reason to lock ’em up and throw away the key.

But what of those individuals in jail who have not yet been convicted of anything?

Let’s agree that denying someone their freedom is one of the most powerful actions a state can take against the individual. Given that premise, the reasons behind incarcerating someone who has not yet faced a jury of his peers should be profound and persuasive.

Too often, the reason someone remains behind bars after having only been charged with a crime is that they’re too poor to purchase their freedom in the way of bail. This reality is routinely exploited by prosecutors as a means of coercing pleas to charges that defendants might otherwise wish to fight – and that more well-heeled defendants most often do fight.

In his state of the state address earlier this year, New York Gov. Andrew Cuomo commented: “The blunt ugly reality is that too often, if you can make bail you are set free and if you are too poor to make bail you are punished.”

Bail reform is a critical step on the path to wider social justice.

Not only is it fundamental to any sweeping criminal justice initiatives, the notion of bail is often the poor stepchild of constitutional rights. It’s enshrined but rarely given the full weight of a fundamental right. The Eighth Amendment to the United States Constitution reads “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

This begs the question: what constitutes “excessive?” When one has nothing, has no savings, no family support and no legal means of raising cash, “excessive” could be what to the rest of us more fortunate individuals would be a mere pittance.

This is a fact not lost on states like New Jersey. Last year, it became the first in the United States to eliminate monetary bail and instead focus on complicated algorithms designed to predict which defendants might pose a risk to public safety.

Cuomo has likewise proposed eliminating monetary bail for misdemeanours and non-violent felonies. And Utah judges have just begun using a comprehensive report tailored to the individual defendants before them on their past history of offences and reliability at showing up for court appearances.

Bail is designed to ensure a defendant appears for a scheduled court date. In theory, it was a way of attaching obligations to a person’s assets that would not be lightly abandoned. But bail has become a business. Bail bondsmen – who, no surprise, are against any reforms – act like the worst of payday loan establishments and take as profit a percentage of the bail owed.

Among the alternatives to monetary bail are requirements for regular in-person reporting of defendants awaiting a court appearance, ankle bracelets or simply being released on their own recognizance in the case of those not deemed a threat to public safety.

The bedrock principle of our criminal justice system is that one is innocent until proven guilty. Unless and until those who have not yet been convicted of a crime are afforded the same opportunity as their more economically advantaged peers to be set free until they’re found guilty, there can be no true justice.

Simply not being able to pay the gatekeeper is a positively medieval way to determine who walks free in our modern society.

Troy Media columnist Gavin MacFadyen is a Canada-raised, U.S.-based writer. Blending insight and wit, he brings a unique perspective to the issues of the day.


bail reform social justice

The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.

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