By MAYA SCHENWARMAY 8, 2015
CHICAGO — HOW can we reduce the
enormous populations of our country’s local jails?
Last month, Mayor Bill de Blasio
of New York unveiled a plan to decrease the population of the Rikers Island
jail complex by reducing the backlog of cases in state courts. About 85 percent
of those at Rikers haven’t been convicted of any offense; they’re just awaiting
trial, sometimes for as long as hundreds of days.
Mayor de Blasio’s plan is a
positive step. Yet it ignores a deeper question: Why are so many people —
particularly poor people of color — in jail awaiting trial in the first place?
Usually, it is because they
cannot afford bail. According to a 2011 report by the city’s Independent Budget
Office, 79 percent of pretrial detainees were sent to Rikers because they
couldn’t post bail right away.
This is a national problem.
Across the United States, most of the people incarcerated in local jails have
not been convicted of a crime but are awaiting trial. And most of those are
waiting in jail not because of any specific risk they have been deemed to pose,
but because they can’t pay their bail.
In other words, we are locking
people up for being poor. This is unjust. We should abolish monetary bail
outright.
Some will argue that bail is
necessary to prevent flight before trial, but there is no good basis for that
assumption. For one thing, people considered to pose an unacceptable risk of
flight (or violence) are not granted bail in the first place. (Though the
procedures for determining who poses a risk themselves ought to be viewed with
skepticism, especially since conceptions of risk are often shaped, tacitly or
otherwise, by racist assumptions.)
There is also evidence that
bail is not necessary to ensure that people show up for trial. In Washington,
D.C., a city that makes virtually no use of monetary bail, the vast majority of
arrestees who are released pretrial do return to court, and rates of additional
crime before trial are low.
In addition to being unjust and
unnecessary, pretrial incarceration can have harmful consequences. Not only do
those who are in jail before trial suffer the trauma of confinement, but in
comparison with their bailed-out counterparts, they are also more likely to be
convicted at trial. As documented in a 2010 Human Rights Watch report, the
legal system is substantially tougher to navigate from behind bars. People in
jail face more pressure to accept plea bargains — often, ones that aren’t to
their advantage — than do those confronting their charges from home.
Those who spend even a few days
in jail can lose their jobs or housing during that time. Single parents can
lose custody of their children. By exacerbating the effects of poverty, and by
placing people in often traumatizing circumstances, pretrial incarceration may
actually lead to more crime.
Bail also raises issues of
racial injustice. A number of studies have shown that black defendants are
assigned higher bail amounts than their white counterparts. This discrepancy is
compounded by the fact that black people disproportionately live in poverty and
thus unduly face challenges in paying bail.
Other burdens of bail also fall
harder on people of color. For instance, black mothers face a particularly
serious risk of losing custody of their children while incarcerated, because
they are excessively targeted by child protective services.
Jails disproportionately
confine mentally ill people, too — rates of mental illness are four to six
times higher in jail than outside — and people with mental health problems
often live in economic circumstances that make it difficult to afford bail. A
study released in February by the Vera Institute of Justice found that
one-third of jailed people with mental illness were unemployed before being
arrested.
Finally, monetary bail is at
odds with the legal ideal of the presumption of innocence. If we want to grant
people this presumption, we must not punish them before their trials.
There is no getting around it:
We are incarcerating people for being poor, at great cost to actual human
lives. We have to stop.
Maya Schenwar, the editor in
chief of Truthout, is the author of “Locked Down, Locked Out: Why Prison
Doesn’t Work and How We Can Do Better.”
