The rich bail out and the poor get prison

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Last year, Maurice Walker was arrested for being a pedestrian under the influence. Although this was a relatively minor offense, he was held in pre-trial detention for six days because he couldn’t pay the $160 bail, which was preset by the Calhoun, Ga. court. In response, attorneys from the Southern Center for Human Rights and Equal Justice Under Law filed a class-action lawsuit on his behalf, which alleged that the city’s fixed-dollar bail requirements violated the civil rights of indigent Americans like Walker. The U.S. Department of Justice recently submitted an amicus curiae brief in support of Walker’s case.

{mosads}The Department of Justice brief cites a growing body of case law on the unconstitutionality of “punishing people for their poverty,” and highlights how the practice conflicts with public policy considerations. Persons who remain incarcerated prior to trial are more likely to be convicted and plead guilty, simply to secure their release. One public defender in Philadelphia explains to his clients, “you can wait it out or take the deal and get out.”

Whether or not the defendant is truly guilty, the fact is that many nonviolent offenders are pleading guilty because they can not afford to post bail and do not want to remain incarcerated. If a defendant remains incarcerated, pretrial detention can negatively impact income, housing and health, as well as jeopardize parental rights. Moreover, persons held in pretrial detention are more likely to receive jail sentences and longer terms of incarceration, if convicted.

Although the Department of Justice sent a clear message against bail practices that unfairly discriminate against the poor in their recent brief, it is unclear why this remains a systemic issue in 2016.

On Aug. 4, 1964, Attorney General Robert F. Kennedy testified to the Senate Judiciary Committee about the issues with the U.S. bail system. In his testimony, he referenced the case of Daniel Walker, who was arrested on suspicion of robbery and spent nearly two months in jail because he could not afford the bail.

While incarcerated, Walker lost his job, his car was repossessed and his credit was destroyed. Although he was later released, after it was found that Walker was the victim of mistaken identity, the consequences of his pretrial detention were detrimental. In his testimony, Kennedy cited the Committee on Poverty and the Administration of Federal Criminal Justice, which concluded that persons who remain in pretrial detention are more likely to be convicted and receive longer jail sentences than someone who is released pretrial.

It has been over 50 years since RFK testified about America’s broken bail system. Since then, there has been considerable research on the negative effects of pretrial detention and how this practice disproportionately affects lower socioeconomic communities. Yet nearly 63 percent of the local jail population are being held under pre-trial detention, even though they have not yet been convicted of a crime.

In order to start breaking the cycle of mass incarceration of predominantly poor Americans of color, we need to move away from fixed-dollar bail requirements, and instead toward empirically validated pretrial risk assessment tools. This type of system will inform judicial pretrial release decisions so that indigent defendants are afforded their constitutional rights to due process and equal protection, while sheltering the public from potential recidivists. 

Mehlman-Orozco is the author of “Hidden in Plain Sight: America’s Slaves of the New Millennium.” She holds a Ph.D. in criminology, law and society from George Mason University. Follow her on Twitter @MehlmanOrozco.


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