Consider two people arrested within hours of each other by police who say the suspects look just like a couple of prowlers who were seen recently creeping around homes that suffered break-ins. Both men are taken to the station, both are booked for first-degree burglary and both are held in jail until being brought before a judge.
The judge sets a trial date and consults the official bail schedule — a kind of rate sheet that lays out how much money suspects must post, depending on the alleged crime and a range of other factors — and sets bail for each at $50,000.
One suspect pulls together enough assets to hire an insurance company — a bail bonds firm — to put up the money, persuading the court that he will show up for trial rather than run away and forfeit his bond. He is released, and over the course of the following weeks, he returns to work, collects paychecks and spends much of his free time with his lawyer, preparing a defense to the charges against him. He rounds up witnesses who can vouch for his whereabouts on the nights of the break-ins.
But the other suspect has no assets to post with the court, or to hire a bondsman to post bail for him. He is locked up in county jail to wait for trial. Because he can't report to work, he loses his job. His lawyer does her best, but he can't help her prepare his defense or track down his alibi witnesses.
"Look," the prosecutor tells him, "I know you did it, so plead guilty and we'll ask for nothing more than time already served." He protests that he's innocent. But he's also stuck in jail and he wants to go home. If he had money, he'd already be there, but he doesn't — so he drops his defense and gets a felony record.
A key precept of the American justice system is that a defendant's wealth or poverty has no bearing on his treatment or his ability to mount a defense. The bail system, when it is misused, undermines that value.
The last several years have produced some soul-searching, some talk and, occasionally, some action on criminal justice reforms to reduce or eliminate the system's unfairness to particular groups of defendants and convicts, particularly the poor and non-whites. There has been talk but, so far, still too little action on reform of the bail system.
In addition to often working a miscarriage of justice, the practice of keeping people locked up based on how much they can afford to pay rather than how much risk they pose to others also is a wasteful misuse of jail space. Jails should not be used to lock up people awaiting trial just because they can't pay, if their release is not likely to put people in danger.
Earlier this month, in a Georgia case in which a defendant was locked up for six days because he couldn't pay his $160 bail, the U.S. Department of Justice filed an amicus brief in which it branded some bail practices violations of the 14th Amendment's guarantee of equal protection under the law.
The time is long past in which a criminal defendant can be denied a lawyer because of inability to pay. How much more odious, then, is the denial of liberty for the same reason?
Let's hope that the Justice Department's argument, widely noted even though it was buried in court papers, becomes a turning point in the debate over bail reform. It's a statement that deserves to be heard loud and clear — not just in Georgia, but in Los Angeles County, around California and in every other jurisdiction that still parcels out jail space based at least in part on a person's inability to pay.