A two-tiered justice system: One for those who can afford it and one for those who can’t
by Howie Katz
In too many cases, those charged with crimes are kept locked up for weeks, if not for months, simply because they cannot afford to make bail. And in traffic courts, too often judges make no distinction between the driver of a Mercedes and the driver of a car who is barely making ends meet. When you have a justice system for those who can afford it and one for those who can’t, the poor are punished for being poor.
Let’s start out with bail. The bail system is based on a concept that people need a monetary incentive to return to court. In other words, someone released on bail will lose the money he put up if he fails to appear in court. But what about those who can’t afford bail?
Oakland, California public defender Rachel Marshall says: “I know all too well how much our bail systems are used as a way to lock up the poor while allowing the wealthy to avoid jail. Every day, I see jails full of people who would be free if they simply had a few more dollars to post bail. Our nation’s bail system allows those with money to buy their way to freedom while others sit in cells simply because they are poor.”
Marshall suggests that ankle monitors be used instead of bail. “If someone is deemed a flight risk, he can be ordered to wear an ankle monitor, which will track his location with far more precision than just seeing if he appears on the day of court,” says Marshall. “Ankle monitors — which in Oakland cost around $20 to $30 a day — are far less costly than incarceration; in Alameda County, it costs an average of more than $142 a day to jail someone. And electronic monitors carry the added advantage of alerting the system to someone skipping town immediately — as opposed to having to wait until a next court date to see if an accused appears.”
The District of Columbia has all but eliminated bail as a condition of release from jail. D.C. has established a pretrial services program that evaluates individual risk levels and determines whether a person should remain in jail, have bail set, or be released without bail under some type of supervision – ankle monitors for example – to ensure their appearance in court. This system has saved D.C. nearly $400 million a year in jail costs. Those charged with rape, armed robbery and murder, remain in jail withot bail or with high bail set.
There are lawsuits going through the courts all over the country challenging the constitutionality of bail systems. Last year the Department of Justice asked a federal appeals court to declare that it’s unconstitutional to keep people locked up for minor crimes just because they’re too poor to afford bail. Harris County has been sued by civil rights groups for jailing poor people who can’t afford bail.
According to the Houston Press, a group of law scholars from the University of Pennsylvania has swooped in and published a study that documents just how bad the problem is. The researchers concluded Harris County’s bail system appears to be unconstitutional, since the poor endure overwhelmingly more negative consequences than the wealthy for the same crimes. Looking at more than 380,000 misdemeanor cases from 2008 to 2013, the researchers found that if you’re detained before trial because you can’t make bail, you are 25 percent more likely to be convicted than somebody who could afford to buy his or her release. You are 43 percent more likely to be sentenced to jail time rather than probation, for example, and if you do get sentenced to jail, your sentence is generally nine days longer—or double—than that of a person who bailed out.
Now let’s turn to the traffic fines. In Houston, as in most jurisdictions, a set of fines has veen established for various traffic infractions. The driver of a Mercedes can usually well afford to pay those fines. For some it’s just pocket change. But what about the driver of a car who is barely making ends meet? Those who can’t afford the fines often simply ignore the summonses. Eventually they get busted and remain in jail for extended periods of time.
Traffic court judges should consider a person’s ability to pay a fine. A wealthy or upper-middle class traffic violator should be assessed the standard fine. But when the single mother of four children appears in court, she should be given some consideration for her financial plight. Let’s suppose the fine is $200. The Mercedes driver would just laugh that off. But for that mother of four, a $200 fine would be devastating. In her case the judge could and should suspend all but $20. That $20 she has to pay probably hurts her more than the $200 fine imposed on the Mercedes driver.
When the poor appear in Houston’s traffic courts after being brought up for ignoring traffic summonses, they are usually shown no mercy. In one case, according to the Houston Press, Magistrate Joe Licata explained to one defendant that assessing fines or setting bail means “job security” for him.
Perhaps Licata ought to spend three or four days in jail just to learn what it’s like to be locked up. Maybe then he’ll find some way of getting job security other than by locking up those who can’t pay a fine or those who cannot make bail only because they are poor.
It should be noted that those locked up in jail for only a few days often lose their jobs. That could cost a county a lot more than just jailing defendants. The families of those jailed are often forced to go on welfare.
There has got to be a better way than punishing the poor for being poor! Harris County would be well advised to consider a system similar to that used by the District of Columbia.
Howie Katz is a former law enforcement officer and retired criminal justice professor. In 1969 he founded the Texas Narcotic Officers Association. He currently resides in Houston, Texas. You can see more of his writing at http://barkgrowlbite.blogspot.com and http://theunconventionalgazette.blogspot.com.