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The U.S. System of Injustice

Clive Crook is a Bloomberg View columnist and writes editorials on economics, finance and politics. He was chief Washington commentator for the Financial Times, a correspondent and editor for the Economist and a senior editor at the Atlantic. He previously served as an official in the British finance ministry and the Government Economic Service.
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If you missed it, a piece in last weekend's New York Times Magazine -- "The Bail Trap" by Nick Pinto -- is worth your time. It describes two cases of shameful injustice. What's most disturbing, though, is the article's conclusion that America's criminal-law system simply couldn't function if such injustices, and countless others like them, were seriously addressed.

Every system is of course bound to fail now and then. But the author's point is that these failures, perpetrated on a huge scale, are deliberate and necessary. Without them, the system would simply collapse. The U.S. doesn't so much have a flawed system of justice: It has a carefully tended and finely tuned system of injustice.

Pinto's article begins with the case of a man with a long criminal record who was arrested for possessing a soda and a straw with which to drink it. The arresting officer said the straw was "drug paraphernalia." The suspect, insisting he was innocent, refused a plea bargain and couldn't afford to meet bail, so he was sent to Rikers Island (where he was beaten up). Three weeks later, prosecutors asked for the charges to be dismissed. For two weeks, they'd been holding a report that showed no drug residue on the straw.

The accused recalls that the judge said, "This is your lucky day," as he set him free. In a way, the judge was right. Earlier this year a mentally disturbed young man killed himself not long after being released from Rikers: He'd been held in pre-trial detention for three years, on charges that were subsequently dropped.

On the face of it, there's something badly wrong with a system that can lock up people without trial -- people presumed to be innocent, as the saying goes -- not because they're deemed a danger to the community or at serious risk of flight, but because they can't afford to pay even nominal bail. Actually, though, this turns out to be a necessary aspect of the country's plea-bargain system for disposing of cases.

If you've been arrested, you can often plead guilty to a minor offense and be let out of jail (with a conviction and all that implies) or you can plead your innocence, demand a trial, and stay locked up unless you can find the money to post bail. That's the problem: Many poor defendants can't raise what the courts may regard as small sums.

The Constitution's Eighth Amendment prohibits, among other things, "excessive bail." On the face of it, if bail is unaffordable it is excessive. Courts don't have to grant bail at all. They can simply deny it if they think the accused is dangerous or will abscond. If they do set bail, the amount presumably ought to be within the accused's ability to obtain. Yet setting bail that defendants cannot pay appears to be standard procedure. Pinto:

The federal government doesn’t track the number of people locked up because they can’t make bail. What we do know is that at any given time, close to 450,000 people are in pretrial detention in the United States — a figure that includes both those denied bail and those unable to pay the bail that has been set... In New York City, where courts use bail far less than in many jurisdictions, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail. And while the city’s courts set bail much lower than the national average, only one in 10 defendants is able to pay it at arraignment. To put a finer point on it: Even when bail is set comparatively low -- at $500 or less, as it is in one-third of nonfelony cases -- only 15 percent of defendants are able to come up with the money to avoid jail. 

Efforts at reform, aimed either at reducing the courts' demands for cash bail or helping poor defendants to meet them, have so far made little progress. There's a reason why far-reaching bail reform isn't happening:

Without bail -- and the quick guilty pleas that it produces -- courts would come under significant strain. 

If a system ever needed to come under significant strain, it's this one.  

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author on this story:
Clive Crook at ccrook5@bloomberg.net

To contact the editor on this story:
James Gibney at jgibney5@bloomberg.net