As word spread that Kyle Rittenhouse was out on $2 million dollar bail, the screams of the unduly passionate could be heard around the nation. No, they weren’t screams of joy at the respect shown the foundational jurisprudential concept and constitutional right of the presumption of innocence and an accused’s release.
Whether he’s a murderer remains to be seen, as he’s innocent until proven guilty. That his bail was paid by “wypipo” (slang for “white people,” assuming that only white people contributed to his legal defense fund and not people who believe in the presumption of innocence), is functionally indistinguishable from bail paid by the many funds, like the Bronx Freedom Fund, that exist around the country to bail people out of jail.
But the real issue here, raised by no less an icon of the woke than AOC, is that Rittenhouse is a white defendant accused of murder and he got out on bail. After I posed this as a test of activists’ integrity, where they may cry for the release of certain defendants while condemning the release of others, my pal Lara Bazelon picked up the gauntlet.
Okay here’s my college try. We shouldn’t have cash bail. It lets ppl w money buy their way out and has nothing to do with protecting the public. We should care abt the latter. But apparently that factor wasn’t assessed.
— Lara Bazelon (@larabazelon) November 21, 2020
This resulted in the discussion of whether cash bail “criminalized poverty,” a contention that I find dubious, unhelpful and often counterproductive. Cash bail is an animal of state law*, and varies in its application from state to state, so by necessity this point is generic. As raised here, it’s used to show how someone with wealth or access to funds can “buy” their way out of pre-trial detention when a poor person cannot. The benefits of being out are huge, and the detriments of being held in lieu of bail are disastrous to most defendants.
And “most defendants” is the starting point for this discussion. There are different universes of defendants, those charged with misdemeanors and low level felonies as opposed to those charged with more serious crimes. There are first offenders and defendants with long rap sheets. Some sheets are for violent crimes and some are for 34 littering arrests. There are defendants with a history of warrants and those with a history of making their court appearances without issue. There are defendants who voluntarily surrender and those who make the cops chase them down. There are defendants with stable families, homes and job, and those who are “in the wind.” Each of these things, and more, influence release, bail and the amount of bail.
The rationale for cash bail, or to be more specific, the use of a scarce resource of value as an incentive to both return to court and behave while out, isn’t because poor people are unworthy, but because society has few incentives available. Fail to return to court or comply with terms of release and your cash is forfeited. People don’t want to lose their money, so they do as required and, at the end of the case, get it (or at least most of it) back. Money is our medium of exchange, of value, whether you think it should be or not.
But Lara’s point, that the lack of money results in differential treatment, can be true. Two guys, same offense, rap sheet, family ties, are arraigned. Both given the same bail. One has a rich mother, while the other doesn’t have a dime. One gets released while the other sits in jail for no differential reason than the inability to make bail. While it’s hyperbolic to say this inability to make bail criminalizes poverty, as the fellow is in jail because of the criminal accusation against him, it’s functionally the same. But for lack of money, he would be out, like his twinster.
Does that make money the evil that keeps defendants wrongfully jailed? Without cash bail, there would be three options available: release, release with conditions and detention. For the first offender or the person arrested on a petty offense, the calculus is very different than for the serial offender, the offender with a history of bench warrants or violent crime, the offender, like Kyle Rittenhouse, charged with a heinous crime. All are presumed innocent in the case at issue, but all are treated very different based on these, plus the many other variables.
The argument is usually framed in terms of the first offender or defendant charged with a petty offense, as these are the saddest and least justifiable stories. Then again, these are also the defendants highly likely to be released on their own recognizance, though nobody mentions the ones cut loose but only the outliers who aren’t.
Without cash bail, what happens to the defendant who has multiple priors, bench warrants, a serious charge and, a particularly nettlesome problem, the homeless? Their release factors weigh against them, so they’re not the defendants who get ROR. What about release with conditions, like monitoring? If they can’t pay bail, how do they pay for monitoring? Ankle bracelets don’t prevent people from committing new crimes, but at most inform on their whereabouts and failure to be where their conditions require. And when they violate conditions, say by going to the bar for a quick Bowmore 18, what do you do about it? Make them wear two ankle bracelets? Nope. In they go.
And people who blow release, violate their conditions or are charged with serious offenses? They get detained with no chance of release, no matter how much money they can muster. Someone charged with murder might get very high bail, but at least he’s got a chance of getting out. And contrary to AOC’s typically vapid assumption, similar bail is set for defendants regardless of race. Unlike AOC, I have actual experience with this, and her racist assumption is not merely wrongful, but clueless. The problem is whether they can make the high bail, or find angels to fund it for them. That’s a different issue.
The point is that without cash bail, there would be a swathe of sympathetic defendants who would be released as well as a swathe of defendants, some sympathetic and others hated by the woke, who would be detained. Cash bail enables the release of many and its absence would mean they had no way out. If you’re of the view that presumptively innocent defendants should at least have the opportunity to be free pending trial, then we need cash bail to make that possible. It can serve to criminalize poverty at the low end of the spectrum, but its absence can serve to criminalize every presumptively innocent defendant at the other end.
In other words, the problem shouldn’t be that Kyle Rittenhouse is out on $2 million bail, but that some other person accused of murder isn’t. Should the reaction be that if everyone isn’t able to get out, no one should? Should a white guy make bail when a black guy can’t?
If this nags you for lack of a viable alternative, bear in mind that there is, and always has been, a fully workable mechansim to alleviate the unfairness of defendants held in custody for lack of sufficient wealth: Judges doing their job better, bolder and with greater integrity. To fix bail, fix bail.
*Federal courts do not use cash bail. Different states utilize widely varying procedures, some requiring 10% down while others require the full amount be deposited. Some have bail schedules while others use algos, while still others have POs establish work and community ties. In some states, bail is used to assure a return to court and community safety, while others (like New York) only base bail on return to court, even though the seriousness of the crime is taken into account by considering it a factor as an incentive to flee. The point is that there are a great many variables across state lines, which are not relevant for the purpose of this discussion.