It was 1770 when the heretical English preacher, John Murray, boarded a cargo ship for the Colonies. Fresh out of a debtors’ prison, and still forlorn over the recent deaths of his wife and child, a distant relative staked Murray to a bail payment and steerage-class ticket to what both men hoped would be a fresh start.
Murray’s cousin’s confidence was not misplaced: the former prisoner would go on to pioneer a vital denomination (Universalism), advance religious tolerance and serve as a chaplain in the Continental Army.
As Murray later noted, he’d been one good turn away from languishing in a dank prison.
They’re chilling, the similarities between 16th-century European penal norms and those on the books across today’s America. From small county jails to big-city detention centers, economically disadvantaged persons awaiting hearing can only watch as more solvent or better connected detainees are released on their own recognizance – many of whom have been charged with more serious offenses than their poorer cellmates.
Estimates of those caught up in this grossly classist (and by definition, racist) legal machination widely vary; but according to a 2016 study administered by the respected nonprofit, Prison Policy Initiative, as many as 70% of the roughly 650,000 women and men who are confined and awaiting due process at any given time already live at half the income ($15,109) of their non-confined cohorts.
In Cook County (Illinois) Jail alone, approximately 20% of the facility’s monthly average 7,500 detainees remain incarcerated while awaiting judgment – not because of the seriousness of their charges or risk for flight, but because they can’t make bail on fixed-amount bonds of $5,000 or less.
These and other related data statistically confirm what front-line public defenders have been saying for decades: the poorer the individual, the more likely he is to enter the justice system; and once within that sphere, the more likely she will remain unnecessarily detained.
Although it proved too little and too late, the Department of Justice during the Obama second term made an attempt to reform the one-size-fits-all bail schedule, filing a brief in support of a Georgia plaintiff, claiming his Fourteenth Amendment rights had been violated when forced to spend six days in jail because he could not secure a $160 bail for simple public intoxication.
For a time it looked as though the case would usher in real reform, prevailing over the stout defense put on by the commercial bail industry and its congressional gladiators: before becoming enmeshed in appeals, the DOJ’s initiative gained public support, thus providing cover for four states (two blue, two red) to pass their own bans against two-tiered bonding.
But as is often the case with an administration’s waning days, the DOJ simply ran out of steam and time. No major, lasting changes could be introduced, leaving any hope for reform at the whim of a new administration more interested in crowd size than jail size.
If there’s an upside to the DOJ’s failed attempts at change, it’s the light shone on a very dirty corner of the American justice system – a judicial subculture so compromised that impoverished detainees are known to prematurely admit to crimes in order to keep their jobs or their homes or their families.
In addition to shining a light, the Georgia case helped focus grassroots efforts at reform from without. Community coalitions in cities such New York, Nashville, Seattle and Chicago have developed funds designed to pay cash bonds for indigent persons accused of nonviolent, low-level offenses.
The outcomes of these groups trend positively, in some cities nearly doubling rates for return court appearances by those with more resources; and their models are being studied in smaller cities, increasing the possibility that inmates in rural areas may also receive support.
Creative efforts like these notwithstanding, the ugly truth is that whole swaths of the nation’s legal system withhold constitutional guarantees on the basis of ability to pay. In place of a sliding scale, humane set of standards, we have a cruel, near-countrywide network of modern-day debtors’ prisons.
Don Rollins is a Unitarian Universalist minister and substance abuse counselor living in Blacksburg, Va. Email firstname.lastname@example.org.
From The Progressive Populist, March 1, 2017
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