Injustice Under Law: Perpetuating and Criminalizing Poverty Through the Courts
| Publication year | 2017 |
Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts
Judge Lisa Foster
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In 1962, in a speech to the American Bar Association, former Attorney General Robert Kennedy asked, "do . . . minorities or people who speak our language imperfectly . . . or those who are poor really receive the same protection before the courts as the rest of our citizens? [A]ll too often," he said, "they do not."1 Today, our justice system is no longer formally based on race, ethnicity, or national origin, but it does depend on wealth.
Money matters in the justice system. If you can afford to purchase your freedom pretrial, if you can afford to immediately pay fines and fees for minor traffic offenses and municipal code violations, if you can afford to hire an attorney, your experience of the justice system both procedurally and substantively will be qualitatively different than the experience of someone who is poor. More disturbingly, through a variety of policies and practices—some of them blatantly unconstitutional—our courts are perpetuating and criminalizing poverty. And when we talk about poverty in the United States, we are still talking about race, ethnicity, and national origin. The majority of poor people in the United States are people of color.2 Although a substantial plurality are white, 24% of African-Americans and 21% of Hispanics live in poverty.3 Yet, African-Americans comprise just 12% of the total population, and Hispanics comprise just 18%.4 The
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impact of what we have done and continue to do daily in courtrooms throughout the United States is to trap people—including disproportionately people of color—in poverty.5
In this essay, I will describe how the justice system enforces poverty employing three examples: bail, fines and fees, and access to counsel in civil cases. These are by no means the only ways in which the justice system quite literally imprisons people in poverty, but they are widespread and particularly pernicious. I will also provide a legal framework for analyzing these practices and a brief gloss on their history. I will conclude hopefully with a discussion of successful reform efforts and a way forward.
A. Bail
For ten years, I was a judge in California, and though I had been a civil litigator for my entire legal career, soon after I became a judge, I found myself presiding in a criminal trial department. I did not know very much about bail; I did not have to. San Diego County, like all California counties, is required by law to adopt a bail schedule,6 and it is easy to use. Each offense is paired with a dollar amount.7 If you are arrested, for example, for possession of a controlled substance, your bail is $1,000; if you are arrested for assault with a firearm, bail is $20,000.8 If you or your family can afford to pay a bail bond company 10-35% of the bond amount, you are released and given a date to come back to court.9 If you cannot afford a bail bond, you
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stay in jail. It is as simple as that. To be perfectly honest, I did not think much about bail, and to the best of my recollection, neither did anyone else—not my colleagues on the bench, not the prosecutors, nor the public defenders.
My experience was and is common among state and local judges, even though in the federal system, bail works very differently—and has for fifty years. In 1964, Attorney General Kennedy testified before the Senate Judiciary Committee and urged Congress to enact bail reform.10 Attorney General Kennedy explained:
Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest. They are not yet proven guilty. They may be no more likely to flee than you or I. But nonetheless, most of them must stay in jail because, to be blunt, they cannot afford to pay for their freedom.11
As Kennedy and others who testified at the Senate hearings noted, bail was not supposed to be a mechanism for keeping people in custody.12 In the Middle Ages, when bail first was invented in England, defendants were detained indefinitely—often for years—without trial.13 Bail was devised as a way to allow someone charged with an offense to be free; appearance at trial could be secured by a pledge to pay money if the defendant did not return to court.14 It became readily apparent that bail could be abused.15 In 1689, the English Bill of Rights outlawed the widespread practice of keeping
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defendants in jail by setting deliberately unaffordable bail, declaring that "excessive bail ought not to be required, nor excessive fines imposed."16 The language may sound familiar—it is repeated almost verbatim in the Eighth Amendment to the United States Constitution.17
In 1966, the federal Bail Reform Act adopted that constitutionally mandated approach to bail by insisting that judges "may not impose a financial condition that results in the pretrial detention of the person."18 The Act requires judges to make an individualized assessment of two factors: whether the defendant is a flight risk and whether the defendant is a risk to public safety.19 If the judge finds that a defendant is a risk to public safety, the judge can impose conditions on the defendant's release or, in rare instances, when no conditions can protect the public, detain a defendant pretrial.20 If the judge finds the defendant is a flight risk, the judge can set a financial condition for his or her release, but only after giving meaningful consideration to an individual's ability to pay and alternative methods of securing the defendant's appearance at trial.21 When President Johnson signed the bill into law, he described the bail system as "archaic and cruel."22 "Because of the bail system," he said, "the scales of justice have been weighted not with fact nor law nor mercy. They have been weighted with money. But now we can begin to insure the defendants are considered as individuals and not as dollar signs."23
Unfortunately, the Bail Reform Act was not the beginning of a movement to reform bail nationwide. It was, practically speaking, the end. Until recently, not a single state adopted statutes comparable to
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the Bail Reform Act.24 To the contrary, the number of people incarcerated pretrial has increased dramatically since the 1980s.25 Despite the United States Supreme Court's unequivocal declaration that "[i]n our society, liberty is the norm, and detention prior to trial . . . the carefully limited exception,"26 roughly 60% of the jail population nationally is comprised of pretrial defendants—a rate that has remained constant over the last decade.27 Since 2000, 95% of the growth in the overall jail inmate population has been due to the increase in the population of defendants held pretrial.28 Most of those detained pretrial are accused of nonviolent offenses.29 Disproportionately, they are people of color.30 African-Americans and Hispanics are at least twice as likely as whites to be detained pretrial for non-violent drug arrests.31
The overwhelming majority are poor.32 Bail perpetuates and exacerbates poverty because of course only people who cannot afford bail are held in custody pretrial, and pretrial detention often makes them poorer.33 As little as three days in custody increases the likelihood that a person will lose their job, their housing, be forced to abandon their education, and be unable to make their child support
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payments.34 The consequences of pretrial detention are not only borne by the individual in jail, but also by their family and the community.35 A child whose single parent is taken into custody not only loses the financial and emotional support that parent provides, but she may be placed in foster care or be forced to move in with a relative and need to change schools.36 The cost of our bail system is enormous: $14 billion in direct costs to American taxpayers to detain people who are mostly low risk and accused of nonviolent offenses.37 We also know, and we have known for 50 years, that a decision to detain or release a defendant pretrial affects the outcome of a case.38 An investigation made by the Laura and John Arnold Foundation found the following outcomes:
Compared to defendants released at some point pending trial, defendants detained for the entire pretrial period are more likely to be sentenced to jail or prison—and for longer periods of time. Detained defendants are over four times more likely to be sentenced to jail and over three times more likely to be sentenced to prison than defendants who are released at some point pending trial. Sentences for detained defendants are also significantly longer: jail sentences are nearly three times as long, and prison sentences are more than twice as long.39
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People detained pretrial are more likely to plead guilty, not always because they are all guilty, but because sometimes it is just the fastest way home.40
Perversely, jail is also a gateway to deeper and more lasting involvement in the criminal justice system, turning the public safety argument for bail on its head. Defendants detained more than twenty-four hours pretrial are more likely to commit new crimes after they are released.41
Incarcerating defendants pretrial simply because they are poor violates the United States Constitution. In 2015, the Department of Justice filed a brief in Varden v. the City of Clanton, advising the district court that: "Fundamental and long-standing principles of equal protection squarely prohibit bail schemes based solely on the ability to pay."42 Last year, the Department filed an amicus brief in the Eleventh Circuit in Walker v. City of Calhoun, arguing that "a bail practice violates the fourteenth amendment if, without consideration of ability to pay and alternative methods of assuring appearance at trial, it results in the pretrial detention of indigent defendants."43
We...
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