A United States of Archaic Systems — Volume 2020
By: Megan West
Tags: Policy Process Theory, Bail Reform, Criminal Justice, Social Construction, Policy Design

The American Dream is a Dream

It’s all right to tell a man to lift himself by his own bootstraps, but it is cruel jest to say to a bootless man that he ought to lift himself by his own bootstraps.

— Martin Luther King Jr., 1967

The American Dream has been touted as a reality for those willing to work hard and lift those bootstraps — but what if there are no boots to begin with? America, being a society built on Capitalism, has many systems that are dictated and motivated by monetary gain, including the criminal justice system, specifically the bail system. Bail is intended to allow a defendant’s conditional release and decrease the odds they will commit another crime or not show up to their trial hearing based on the collateral (money) posted.

The bail system disproportionately affects groups with lower socioeconomic status, leading to a higher rate of this group being incarcerated. Bail is set by a judge, with only a prosecutor and the defendant present. Defendants do not have to have representation present at these hearings. The pretrial hearing typically lasts no more than five minutes and can lead to the determination of someone’s sentence at their trial. In nearly twenty states bail is not based on a pre-trial assessment and varies depending on the judge assigned to the case. A 2016 study in Florida and Pennsylvania found that pretrial release can decrease a defendant being found guilty by 15.6 percent. Because of inequalities and bias in the criminal justice bail system, there is a higher rate of incarceration among racial minorities, specifically Black men in the United States of America.

Social Construction and Policy Design Framework

Social construction in policy design plays into people’s implicit bias when creating systems and policies that directly affect people. A few examples include the welfare system, housing policies, farm policy, immigration policy and criminal justice policy — including bail. When systems are socially constructed, certain groups benefit more easily than other social groups. Helen Ingram and Anne Schneider highlight four main groups in the Political Power vs. Social Construction Model outlined below. Their theory was introduced and published in the American Political Science Review, 1993, vol. 87, issue 2, 334–347. The four groups are “Advantaged”, “Contenders”, “Dependents” and “Deviants”, with each exhibiting varying degrees of benefits and burdens. As shown below, people who are subjected to the bail system are typically constructed as “deviants” and receive very few benefits and substantially more burdens than other groups in the society.

Helen Ingram and Anne Schneider’s Political Power vs. Social Construction Model

Policy constructs and creates these roles for people subconsciously (for the most part) and can be based solely on personal opinion. For example, Black men are incarcerated almost four times more than White men, leading them to be labeled as “deviants”, unjustly bearing a higher proportion of burdens. This is true in relation to incarceration rates and based on population rates among races. Looking at population vs incarceration rates data from 2018 for white, Latino/Hispanic, and black men in the US, the inequality is egregious. This inequality stems from racism in the bail system and social construction that has unjustly labeled black men as “deviants” for hundreds of years.

Development and Impact of the Bail System in the United States of America

The bail system in America began in 1791 during the formation of the Constitution as stated in the eighth amendment; Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The eighth amendment is designed to protect those who have been accused of a crime from unjust punishment due to the crime, or to gain freedom pre-trial. When the constitution was written, white male landowners were the authors and beneficiaries. Bail had its place in America as it was useful in keeping pre-trial defendants from fleeing because collateral was placed on the line (it was much easier to disappear into the night in 1791 than it is in 2020). Fast forward to 2020 and the bail system has made few progressive strides. This inequality and inequity within the criminal justice bail system has been resistant to change other than a few states implementing bail reform. These states are enacting reforms and moving from a cash bail system to a supervised release based on a risk assessment scale. New York state has even eradicated bail for certain levels of crimes. Four states have outlawed bail bonds including Illinois, Kentucky, Oregon and Wisconsin. Alaska, California and New Jersey have almost completely outlawed cash bail or limited its use. Since implementing the new system in 2017, New Jersey has seen a 20 percent reduction in its jail population.

Seventy percent of the roughly 600,000 people in jails in the United States have not been accused of a crime and are being held pretrial because of bail bonds. Some scholars go as far as stating this is unconstitutional because people have not been granted access to a fair trial and are not presumed innocent until proven guilty as they await trial incarcerated in jail. It also adds an added disadvantage to someone arriving to trial in a jumpsuit and handcuffs vs. someone who was released to go home and comes to court in a clean suit, having kept their life, work, and family duties while awaiting trial.

The Criminal Justice Bail System in 2020

In 2020 people spend on average between 5 to 200 days waiting for an arraignment hearing. Depending on the judge, the crime, the jurisdiction and the state a person lives in, bail will be decided for a person as there are very few set scales for crimes. It is logical to utilize a pretrial algorithmic risk assessment model to set bail or keep someone detained based on their current charge, past arrests and convictions, but it does not make sense for non-violent and misdemeanor crimes. If a person can pay the bail directly to the court, they are released and wait for the day of the hearing. The defendant is entitled the full amount of bail posted even if found guilty at the end of the trial. If the bail is unable to be paid directly to the court, a person has three options.

1. They can hire a bail bondsman to post a bail bond. In order to do so, the defendant is required to pay 10–20% of the bail amount to the bond company. The bail bond company takes a risk and therefore claims the entire amount back at the end of the trial.

2. A person can wait in jail until their trial date. Depending on the felony offense, a defendant unable to post bail spent between 50–200 days awaiting trial incarcerated.

3. People who are innocent will plead guilty pre-trial with the thought that they will take a plea deal and go home. This system targets the poorer people in society and frequently leads to unnecessary incarceration.

The Cost of Injustice in the Justice System

The cost of detaining someone who is innocent until proven guilty is not only monetary, but includes the expense of the defendant not working, the potential cost of a child going into foster care, and the increased probability that someone who is incarcerated pretrial will commit another crime in the future. The cost alone to house people with pre-trial misdemeanor offenses a year in the state of Ohio ranges between $74 to $96 million dollars, and another $235 to $306 million to house those waiting for a felony offense trial. This system is so archaic and expensive that the United States and the Philippines are the only nations in the world still using a bail system in criminal justice.

The bail bond industry, and bails that do not fit the crime have become normalized in the United States. Two days in jail can cost someone their housing, job and even custody of their children. In just two days a life can be completely upended, and the person accused of the crime could very well be innocent, but their entire life has been upended regardless of the trial outcome.

Bail upholds white supremacy, extracts money from minorities and people of color, this being true especially for poor people of color. Two examples of bail and the bail bond industries unequal effect on minority populations in the United States are shown below.

On May 25, 2020 George Floyd was murdered in Minneapolis for possessing a counterfeit twenty-dollar bill. The following day protests, riots and looting broke out across the United States and abroad in outrage for the police brutality against George Floyd and many other Black Americans in the country. Adding to the anger is an out-of-control pandemic and some of the highest unemployment rates seen in decades, April 2020, 14.7% and May 2020, 13.3%. The news covered many topics including bail funds and the huge sums of money volunteers quickly had to manage and disseminate to those who were arrested in the unrest taking place across the country.

As of June 2020, the Associated Press reported more than 10,000 people had been arrested in connection with the George Floyd protests in the United States. These arrests ranged from violation of curfew to looting and vandalism. Locally in Utah, a pair of Salt Lake protestors were arrested, and bail was set at $50,000 a piece for purchasing paint and vandalizing the District Attorney’s office in Salt Lake County.

According to a 2017 Federal Reserve report, 4 in 10 individuals would not be able to cover a $400 expense without selling items or borrowing funds. If 4 in 10 individuals can not cover a $400 expense, a $50,000 bail would definitely not be paid, leading innocent people to plead guilty because they cannot afford the bail. The cash bail is another system in America with implicit racial bias. A blatant example is a bail bondsman in a Vice docu-series purposefully setting up a bond office in the “most dangerous corner of Baltimore”.

Kalief Browder was a Black 16-year-old teen in 2010 from the Bronx who was arrested for allegedly stealing a backpack containing valuables. He was charged with a second-degree felony and a $10,000 bond was set. He was sent to Rikers Island for three years without a trial because he nor his family could post his bail. After 3 years, and many months in solitary confinement and repeated abuse, Kalief’s charges were dropped and he was released. He had not been convicted of a crime and spent years in a prison notorious for inhumane treatment. Sadly, his short life ended when he completed suicide on June 6, 2015 at the age of 22. Had Kalief or his family had the financial means to keep him out of Rikers detention center pre-trial, he more than likely would be alive today.

Conclusion

History is slow to make changes when it comes to socially constructed policies, and that does not mean change is a hopeless endeavor. These inhumane stories of sadness, death and despair need to propel the changes that are decades overdue. The social construction model can be shifted and rearranged, it just takes time for those changes to be implemented. The tools provided in the theory can be used to better the society as a whole, not just advantaged subgroups. By initiating bail reform across the United States including pretrial risk assessment models based on current charges, previous arrests and convictions, bias and inequality are proven to decrease in the justice system. Defendants should not have to sit in jail without representation by counsel, and the right to a fair trial by an impartial jury, as those promises are every American’s constitutional right. While criminal justice policies may be resistant to change, using the social construction model, it is possible, but will require shifts in power and people’s mindset.