The Inherent Bias of Bail

In the summer of 2001, when I was 19 years old, some friends and I were on our way to a tiny old synagogue in Greenwich Village for a concert called “Music of the Jewish Mystics.” With an hour before curtains, I suggested we make our way down to the Hudson River, partake in a shanda (shameful act), and smoke the little joint one of us had in our pockets.

Unbeknownst to us, there was a squad of undercover police officers close by, and they had other plans for us. We were arrested and taken to the Manhattan Detention Complex, known as “The Tombs,” where we sat and waited in an overcrowded jail cell for 24 hours, until a judge saw us, a few Jewish boys from the suburbs, and ordered our release.

Seventeen years have gone by, but I think about that night often, trying to reconcile myself with the unfairness that exists in the criminal justice system. Not the unfairness that rested on me, but with the vast majority of people I shared a jail cell with. Today, a black male age 18–19 is 11.8 times more likely to be imprisoned than a white male of that age (the age of my arrest), according to the U.S. Department of Justice. And the median annual income for incarcerated individuals before their incarceration is less than half of their counterparts, also based on DOJ data.

In the early 1980s, the number of people confined to our nation’s county jails were split fairly evenly between people serving shorter sentences for relatively minor crimes and people being held for pretrial detention. But in 1987, the Supreme Court held that a person can be incarcerated before their trial when, according to a judge, they have a potential for “future dangerousness.” (U.S. v. Salerno, 481 U.S. 739). The Court provided no guidance for how long such confinement might last. Ever since, the number of people incarcerated before having a trial has rapidly grown, causing erosion to a bedrock principle of justice, the presumption of innocence.

Because it is difficult to square these two contradictory presumptions — that someone can be presumed innocent of a past crime while presumed guilty of a hypothetical future crime — courts have increasingly relied on cash bail to determine whether a person should be released from jail before trial. Between 1990 and 2009, the share of people required to post money bail grew from 37 to 61 percent, according to the American Civil Liberties Union.

After a person is arrested, a judge will set a bail amount based on the criminal charge, giving that person the option of enjoying the right to liberty before trial. But, in many states, these amounts are set so high that most people cannot afford to pay them. They can either purchase a commercial bail bond for a fee or languish in jail until trial.

It’s a legal fiction that pretrial detention is not considered punishment. Even a short time in jail can cause lasting harms: loss of a job, loss of income, loss of transportation, eviction, inordinate stress on the family, and even episodes of emotional decompensation that can aggravate psychological disorders. It is a harrowing fact that suicide is the leading cause of death in jails, and it’s most often committed by people who have been arrested for nonviolent offenses, who have not been tried and convicted, and who were in jail for less than a week.

So why do we hold onto this system? Primarily, the commercial bail bonds industry has pandered to our fears about crime. It will say bail is necessary to protect public safety while ignoring the fact that, in many jurisdictions, people who have been accused of murder can bail themselves out if they have enough money.

Without dismissing the fears of those who are fearful, I sometimes wonder if we have forgotten some basic lessons from the Torah. Ayin tachat ayin, an eye for an eye, it says in the Torah — not also an arm and a leg. Righteous justice balances the retributive desire to blame others with communal needs for proportionality, truth, and reconciliation.

We have two justice systems in this country — one for people who can afford first-class treatment, and one for everyone else — and it’s important to consider the deeper consequences of our action or inaction. During a time when many of us are concerned about the implications of the insistent attacks on the rule of law, reforming the bail system is one positive step we can take to restore our commitment to the integrity of the justice system for all. Bend the Arc Jewish Action has been at the forefront of the campaign for bail reform in states across the nation and needs your help to pressure, lobby, and hold elected officials accountable.

Alex Sherman is a lawyer in Los Angeles and a leader with Bend The Arc: Jewish Action’s Criminal Justice Committee in Southern California.


Alex Sherman

Alex Sherman

Alex Sherman is a lawyer in Los Angeles and a leader with Bend The Arc: Jewish Action’s Criminal Justice Committee in Southern California.

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