When Bonds Turn to Badges

NOTE
When Bonds Turn to Badges
MARY MAGGIEO’LEARY*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
I. THIRTEENTH AMENDMENT JURISPRUDENCE AND THE MEANING OF
BADGES AND INCIDENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
A. THIRTEENTH AMENDMENT AS INTERPRETED AT ADOPTION . . . . . . . . 408
B. JUDICIAL INTERPRETATION AS DEFINED AND APPLIED TODAY . . . . . . 409
C. APPLYING A BROAD INTERPRETATION OF BADGES AND INCIDENTS IN
FUTURE CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
II. THE MODERN FOR-PROFIT BAIL SYSTEM AND ITS ANTEBELLUM
HERITAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
A. ANTEBELLUM AND POSTBELLUM PRACTICES . . . . . . . . . . . . . . . . . . . 415
1. Physical Coercion and Limitations on Mobility. . . . . . . . 415
2. Legal Coercion and Economic Depletion . . . . . . . . . . . . 417
B. FOR-PROFIT BAIL TODAY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
1. Physical Coercion and Limitations on Mobility. . . . . . . . 424
a. Pretrial Incarceration . . . . . . . . . . . . . . . . . . . . . . . 424
b. Commercial Bond . . . . . . . . . . . . . . . . . . . . . . . . . . 426
2. Legal Coercion and Economic Pressure . . . . . . . . . . . . . 427
a. Pretrial Incarceration . . . . . . . . . . . . . . . . . . . . . . . 427
b. Commercial Bond . . . . . . . . . . . . . . . . . . . . . . . . . . 430
* Georgetown Law, J.D. 2021; University of California, Los Angeles, B.A. 2016. © 2021, Mary
MaggieO’Leary. My gratitude goes to Professor Robin Lenhardt, whose guidance and support were
invaluable to developing the paper that became this Note. I also want to acknowledge Jo Cuaresma and
Professor Jarrod F. Reich for their thoughtful insights. Finally, I want to thank Wynne Leahy, Daniel
Wassim, Phil Kim, and all The Georgetown Law Journal editors and staff for their helpful contributions.
This Note is dedicated to my parents.
403
III. FOR-PROFIT BAIL AS A BADGE AND INCIDENT OF SLAVERY AND THE
IMPORTANCE OF SUCH CLASSIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431
A. FOR-PROFIT BAIL IS A BADGE AND INCIDENT OF SLAVERY . . . . . . . . 432
1. Limitations on Physical Autonomy. . . . . . . . . . . . . . . . . 434
2. Legal Coercion and Economic Oppression . . . . . . . . . . . 437
B. WHY CONCEPTUALIZE FOR-PROFIT BAIL AS A BADGE AND INCIDENT
OF SLAVERY?............................................ 440
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
INTRODUCTION
The year is 1866. One year has elapsed since the ratification of the Thirteenth
Amendment abolishing slavery. Jacob Burgest, a Black Union Army veteran, has
found himself in a position quite familiar to other Black people living in the
Reconstruction South: in jail.
1
He had been arrested after leaving his plantation
job in protest over not getting paid.
2
For invoking his newly granted rights,
Burgest was now in a cell under the condition of a $150 bail.
3
When a friend sub-
sequently came to post his bail in the form of a bond, the friend was denied as a
personal surety and the bail amount was tripled and contingent upon upfront pay-
ment.
4
Consequently, Burgest was incarcerated for many weeks,during which
he was covered with vermin, robbed of [his] clothes.
5
He was left lamenting
the way the law was being ‘administered wholly in the interest of the white man
[while] the colored people have no justice whatsoever.’
6
Flash forward 153 years to 2019. Dennis Edwards, a Black man, was in a posi-
tion familiar to many Black men in modern America: still in jail.
7
He was incar-
cerated on the condition that he pay $4,500 in bail or $520 to a private bail bonds
service.
8
Edwards was never convicted of any crime, and yet, he would take his
1. See Persecution of Colored Men., NEW ORLEANS TRIB., Sept. 23, 1866, at 3.
2. Jacob Alan Grover, One Dead Freedman: Everyday Racial Violence, Black Freedom, and
American Citizenship, 1863-1871, at 91–92 (May 17, 2017) (Ph.D. dissertation, University of
Kentucky) (citing Persecution of Colored Men., supra note 1), https://uknowledge.uky.edu/cgi/
viewcontent.cgi?article=1057&context=history_etds [https://perma.cc/2EM3-D57F].
3. FLOZELL DANIELS, JR., BENJAMIN D. WEBER & JON WOOL, FROM BONDAGE TO BAIL BONDS:
PUTTING A PRICE ON FREEDOM IN NEW ORLEANS 3 (2018) (citing Persecution of Colored Men., supra
note 1), https://s3.amazonaws.com/gnocdc/reports/Daniels_bondage_to_bail_bonds.pdf [https://perma.
cc/EBF9-MTJ3].
4. Id.
5. Grover, supra note 2, at 92 (quoting Persecution of Colored Men., supra note 1).
6. DANIELS, JR. ET AL., supra note 3 (quoting Persecution of Colored Men., supra note 1).
7. Jarvis DeBerry, Opinion, Don’t Just Ask Why Inmate Died; Ask Why He Was an Inmate, NOLA.
COM (July 12, 2019, 1:55 PM), https://www.nola.com/opinions/article_7b085807-495c-523f-8efe-
6e6004390808.html [https://perma.cc/23ZE-GHAT].
8. Id.
404 THE GEORGETOWN LAW JOURNAL [Vol. 110:403
last breaths from behind bars.
9
He was left to die from medical distress because
he was unable to purchase his freedom; he was unable to post bail. Time has pro-
gressed since 1866, but the criminal justice system’s use of bail as a barrier to jus-
tice for Black individuals has not. Today, as during antebellum times, the Black
community still lacks meaningful access to bail and thus freedom.
Bail is the temporary release of a person awaiting trial for a crime.
10
Typically, a defendant posts bail by pledging a personal assurance or a property
guarantee to a court to persuade it to release the accused on the understanding
that [the defendant] will return for trial or forfeit the money.
11
At common law, bail amounts were set as to not render the privilege useless
to the poor
12
and the money was paid only if the defendant failed to appear.
13
This system was grounded in the principles of due process and the presumption
of innocence, which guarantee[d] that a person will not be punished or lose their
liberty before they face a trial.
14
Only the most dangerous defendants were
forced to remain incarcerated.
15
Under this design, poor white people were fre-
quently released without any condition of money bail.
16
The modern for-profit bail system differs from the common law antecedent. In
postbellum America, bail evolved into a racialized, wealth-based, for-profit sys-
tem.
17
In a for-profit bail system, bail must be paid upfront.
18
This forces defend-
ants who cannot afford the court-appointed bail amount to choose between two
evils—utilizing a commercial bondsman
19
or remaining in jail until their trial
commences.
20
Both options cripple the defendant’s ability to navigate the
9. See id.
10. SHIMA BARADARAN BAUGHMAN, THE BAIL BOOK: A COMPREHENSIVE LOOK AT BAIL IN
AMERICAS CRIMINAL JUSTICE SYSTEM 1 (2018).
11. Id. at 2.
12. EDWARD LIVINGSTON, A SYSTEM OF PENAL LAW FOR THE STATE OF LOUISIANA 510
(Philadelphia, James Kay, Jun. & Brother 1833) (When bail is given, the prisoner must be discharged
without extracting from him the payment of any fees.).
13. See LE
´ON DIGARD & ELIZABETH SWAVOLA, VERA INST. OF JUST., JUSTICE DENIED: THE
HARMFUL AND LASTING EFFECTS OF PRETRIAL DETENTION 1 (2019), https://www.vera.org/downloads/
publications/Justice-Denied-Evidence-Brief.pdf [https://perma.cc/2GT8-LVEZ].
14. BAUGHMAN, supra note 10, at 3.
15. See id. Originally, the First Congress provided bail to all defendants besides those accused of
capital offenses. Id.
16. See DANIELS, JR. ET AL., supra note 3, at 2.
17. See, e.g., Kellen Funk, The Present Crisis in American Bail, 128 YALE L.J.F. 1098, 1119 (2019);
DIGARD & SWAVOLA, supra note 13. This transition has been ever quicker in recent years. See PATRICK
LIU, RYAN NUNN & JAY SHAMBAUGH, THE HAMILTON PROJECT, THE ECONOMICS OF BAIL AND
PRETRIAL DETENTION 5 (2018), https://www.hamiltonproject.org/assets/files/BailFineReform_EA_
121818_6PM.pdf [https://perma.cc/3UUY-44UX].
18. See, e.g., DIGARD & SWAVOLA, supra note 13.
19. This Note frequently uses the term bondsman(and bondsmen) as a term of art to reference an
individual who engages in commercial bond services. It is not a gendered term as both men and women
can be a bondsman.
20. See, e.g., DIGARD & SWAVOLA, supra note 13; Stephanie Wykstra, Bail Reform, Which Could
Save Millions of Unconvicted People from Jail, Explained, VOX (Oct. 17, 2018, 7:30 AM), https://www.
vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice- inequality [https://perma.
cc/NMJ2-4HUL]. If a defendant fails to show up for trial, they forfeit the bond; but it will be returned to
2021] WHEN BONDS TURN TO BADGES 405

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