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Friday, January 22, 2010

Bail and Punishment: Many Behind Bars Have Been Convicted of Nothing

Most Americans believe that if you are behind bars somewhere it is because you committed a crime. Kudos to NPR's Laura Sullivan for setting the record straight with her stunning multi-part story on bail and jail in America. Bottom line, thousands of Americans languish in jails accused of petty crimes but unable to meet usurious bond fees set by bondsmen (an ominous if old fashioned term for an industry comparable to the payday loan business) while in aggregate, local and state governments spend 9 billion dollars a year housing people who pose little threat and who have not been convicted by anyone but a police officer thus far. In today's piece, Sullivan's interviews with Shadu Green, a New York City resident arrested for being belligerent to the police, underscore how this invisible system of control processes many new convictions by forcing the arrested to choose between languishing in jail for months, or accepting a guilty plea that may get them out sooner.

While Sullivan emphasized the role of bail bond companies in lobbying local government to keep the current money bail system in place, this all too familiar circuit of enterprises exploiting the poor with the help of government needs to be seen in the context of the broader structure of fear based governing through crime. While bail bond enterprises may well be effective at buying cooperation from judges and county administrators, it is hard to understand why state legislatures, who control the ultimate statutory levers, would choose to leave millions on the table for benefit of local businesses. Like correctional officers and prison construction companies, self interested politics works because of a structure of beliefs about those arrested and processed by our criminal justice system that has become part of what sociologist David Garland would call the "common sense" of high crime societies (in the book, The Culture of Control).

1. Most people arrested by the police are criminals who are guilty of something (whether or not clever defense lawyers are able to get them off on technicalities).

2. The courts routinely let dangerous criminals out almost immediately, rendering the work of police largely futile.

3. While on the streets, these unconvicted criminals return to committing crimes, perhaps a faster clip to earn enough to pay off their defense lawyers.

4. No one in the community is hurt by the absence of these presumptive "predators".

As Sullivan's reporting shows, all of these assumptions are questionable.

Posted by Jonathan Simon on January 22, 2010 at 12:39 PM in Criminal Law, Culture, Jonathan Simon | Permalink


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Blaming the bail bondsman for the failing criminal justice system is like blaming the bank for getting robbed.

The system in general is corrupt and at some point will collapse under it's own weight

Posted by: Larry | Apr 2, 2010 12:51:37 AM

Pre-judgment confinement may be used excessively, but the existence of that system is not the fault of bail bondsmen, so much is it is of the politicans afraid of the alternative.

Among the points that recommend bail bondsmen:

1. They are the only non-governmental actors at least somewhat on the side of most criminal defendants, and are the most prone in the system to treat criminal defendants as individual human beings. In contrast, the police, the prosecutors, the judge and the criminal defense attorney are all state and local government employees.

2. Bail bondsmen evaluate their clients based on actual risk, not politics. A defendant who has committed a crime that is the subject of a current frenzy, but an unlikely flight risk, will still get the time of day from a bail bondsman. Their empirical focus is based upon the fact that they face personal economic consequences for bad judgments.

3. Bail bondsmen are, by and large, extending credit to people that no bank, credit union or finance company would lend to, with few assets, low income and a high prospect of difficulty paying in the future. Even pay day loans shun people who either don't have a job or are likely to not have a job by the time the payment is due.

4. Bail bondsmen recognize that many of their clients have a problem with bureacratic matters like remembering appointments and getting to court on time for hearings, not because they are trying to flee, but because that is just the kind of people that they are. Unlike the bureacratic court system, bail bondsmen are proactive in getting a flaky but not necessarily malfeasant defendant to court, with nudges from phone calls to rides to the court house rather than punishment after the fact for not showing up.

5. Bail bondsmen meet the defendant's immediate need, which is to get out of jail, relief that a low asset defendant can get no other way. A defendant who is out of jail awaiting trial is first, not punished pending trial with incarceration (with attendant loss of jobs, disruption of relationships, etc.), and second, is likely to get a better sentence than an incarcerated defendant since he doesn't face the same duress of incarceration pending trial and may even be able to assist in his own defense by finding supporting facts.

Put another way, bail bondsmen keep the pretrial release rate closer to what it would be in an ideal world, while allowing public officials to avoid the appearance of having been lax in creating a risk to the public.

6. Bail bondsmen are often more vigorous and effective at restoring to custody someone who skips a hearing and poses a threat to the public than law enforcement.

7. Bail bondsmen are more flexible in dealing with non-standard financial situations (e.g. someone with non-U.S. money, a relativive's assets, a car, a valuable item or some other hard to liquidate non-standard collateral) than ordinary financial insitutions or government agencies.

Posted by: ohwilleke | Jan 26, 2010 1:05:52 PM

Thanks for bringing this to our attention.

The late, great Caleb Foote would have recognized instantly the disturbing lack of progress between Philadelphia in the 1950s, and the world Sullivan reveals. We still seem to use the criminal justice system not so much to punish or prevent crime as to control the undesirable. In that sense, it is informally unacceptable social deviance, rather than formal legal deviance, that triggers an enforcement response. Often the two may coincide; but when they don't, the instruments of criminal control are often applied to the socially unacceptably deviant regardless of whether a crime has been committed, much less adjudicated.

Posted by: Mark Edwards | Jan 26, 2010 12:18:23 AM

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