Plea Bargains, Bail & the Poor

 The article below was taken, with permission, from the August – September, 2012 edition of The Catholic Worker.

 Plea Bargains, Bail & the Poor


It is not uncommon for a man who regularly eats on St. Joe’s soup-line or comes to us for clothing to seemingly vanish, someone we know on a first name basis and with whom we converse easily and in a friendly manner.  Then, one day, he simply goes missing. Sometimes we hear good news: that he obtained housing, though usually far from his old neighborhood, maybe in Far Rockaway or the Bronx, as the city government tucks its poorest citizens out of view from wealthier New Yorkers and tourists. More often, the man returns a few weeks or years later, sometimes able to recount exactly how many days it’s been since we’ve last seen him. An almost standard joke is that he’s been “on vacation” but, in truth, he’s been in jail or prison.

Many of you, our readers, are aware that the US incarcerates approximately 2.5 million people, four times as many as we did just a few decades ago. Though the US comprises about 5% of the world’s population, we have 25% of the world’s prisoners. A ”tough on crime” philosophy, the war on drugs, three strikes laws, stop and frisk policies, and long and mandatory sentences even for first-time offenders are all offered  as partial explanations. The privatization of prisons, which causes profit to be a greater value than care or rehabilitation, makes it desirable, at least from a   corporate point of view, to detain or incarcerate ever-greater number of people.  Last December, Congress debated and passed a budget that cut many socialprograms, but allocated a more than fifty million dollar increase to Homeland Security’s Immigration and Customs Enforcement. That included an allocation for 34,000 daily immigration detention beds, an increase of 600, most of which will likely end up in private facilities. Corporations like Corrections Corporation of Ame1ica and GEO Group spend millions lobbying Congress over issues like this. And our millions of undocumented brothers and sisters, who are constantly in danger of detention, offer a rich resource for these corporations.

Long-term solitary confinement (see CW, March-April, 2012) is another serious concern. Although there are still at least 25,000 people being held in solitary confinement in the US (prison experts and advocates estimate that the number is much higher, perhaps as many as 60,000 or even 80,000 people), there are glimmers of hope.  In 2010, an easing of restrictions at Mississippi’s notorious prison, Parchman Farm, resulted in reduced prisoner violence and the eventual closing of that prison’s Segregated Housing Unit (SHU), saving the state more than five million dollars.  Other states, including Colorado, Illinois, Maine, Ohio and Washington are following suit, albeit primarily for budgetary rather than humanitarian reasons, for it is far less expensive to house people in traditional prison cells than SHUs.  In fact, at a national convention of prison chaplains last June, John E. Wetzel, Secretary of Pennsylvania’s Department of Corrections, said that there is hope for prison reform in the economic difficulties that states are facing.  At California’s Pelican Bay Prison, where SHU conditions prompted two statewide prison hunger strikes, the long-standing policy of isolating suspected gang members unless they were “debriefed,” that is to say that they “snitched” on other gang members who would then be isolated in turn, was abandoned.

As much as we at The Catholic Worker would prefer to announce the good news, there is little good to say about prisons in the United States.  Thinking about those friends of St. Joe’s who go missing, I found myself pondering a most basic question: how do so many people in the US wind up behind bars?  Sadly, two answers lie in some of our criminal justice system’s most basic flaws and occur at the “justice” segment of the story, before anyone is subject to long-term incarceration.

Following a demonstration against solitary confinement last winter outside a Brooklyn jail, longtime friend, Catholic Worker and now law student, Matt D., offered me a ride back to St. Joseph House.  He volunteered that the issue that most concerns him right now is the injustice of the bail system.  His knowledge of the subject, passion and encouragement confirmed what I’d already glimpsed: that following arraignment, when someone is formally accused of a crime and supposedly presumed to be innocent until proven guilty, a great injustice often occurs that disproportionately affects poor people.  At that time, the judge may release a person on his or her own recognizance until the trial.  If there is a reason to believe that the person may not appear in court, the judge may require that an amount of money be put up as bail as a condition of release.

Here in New York City, according to a report issued in December 2010 by Human Rights Watch that relied on statistics provided by the NYC Criminal Justice Agency, just over three-quarters of those arraigned in non-felony cases were released on their own recognizance.  Of those remaining, most had bail set at one thousand dollars or less.  Tragically, however, 87% of the defendants arrested in 2008 who had bail set at that amount did not post bail, and were therefore jailed for an average of a little more than two weeks while awaiting trial.

Over 70% of those people were accused of nonviolent crimes.  Fully 39% of our city’s jail population at any moment is comprised of people who did not post bail, and nationwide 62% of our jail population consists of detainees awaiting trial.

Judges supposedly set bail solely to ensure that the defendant will appear in court, but they are under no obligation to offer their reasons for decisions in this manner.  Excessive bail is prohibited by the US and New York State constitutions and, theoretically, bail should be tailored to the defendant’s personal financial situation.  In New York City’s assembly line justice system, however, where such decisions are often made in a matter of minutes, judges rarely have the time or information needed to make such a determination.  Failures to appear in court are relatively rare, as only sixteen percent of accused persons miss a court appearance, and most of those people will return to court voluntarily within thirty days.  Throughout the country, pretrial alternatives to jail that employ supervision, monitoring and notification of court dates have been shown to be effective and less expensive than detention.

Usually, for homeless and other poor people, posting bail is simply not an option.  And, while in jail, they may lose their jobs or, at the very least, desperately needed income to provide for themselves and their families.  They cannot attend school, mental health or substance abuse programs, or care for their children or elderly or ill relatives.  Homeless people may lose their place in shelters.  Then, of course, there is the humiliation, depersonalization and potential violence of jail.  Lastly, the Human Rights Watch report states that “most people accused of low level offenses, when faced with a bail amount they cannot make will accept a guilty plea; if they do not plea at arraignment, they will do so after having been in detention a week or two.  Guilty pleas account for 99.6% of all convictions of New York City misdemeanor defendants.”

As a high school student, I was taught that, according to the Bill of Rights, everyone in the United States has the right to a fair trial.  The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Although that technically remains true, over 90% of criminal cases in the US never go to trial (NY Times, 3/11/2012). Instead, most accused people plead guilty, thereby forfeiting their constitutional rights, and then plea bargain, hoping for a lesser sentence.  As jails filled in recent decades, the criminal justice system would have bogged down had it not been “that government officials have deliberately engineered a system to assure that the jury trial system established by the Constitution is seldom used,” according to Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute (NY Times, 3/11/2012).  This system leans toward presuming guilt rather than innocence until proven guilty.  The practice of plea bargaining has become so prevalent that in March of this year, the US Supreme Court decided in two cases, each by a five to four majority, that an accused person has the right to competent legal counsel during plea bargaining.  “Criminal justice today is for the most part a system of pleas, not a system of trials. The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences,” Justice Anthony Kennedy wrote for the majority (NY Times, 3/21/2012).

This recent court decision acknowledges a very real shift in how people are convicted, placing greater power in the hands of prosecutors rather than in judges.  The court decision is long overdue.  In 1978, the Supreme Court ruled that it was not a violation of Sixth Amendment rights to threaten someone accused of a minor crime with life imprisonment.  And in 1991, that a sentence of life imprisonment for a first-time drug offense did not contradict the Eighth Amendment’s prohibition of cruel and unusual punishment.  Given the threat of such severe penalties, it is no surprise that so many people agree to plea bargains, regardless of their guilt or innocence.  Despite the relief from longer prison sentences, however, many people, upon being released, are surprised to discover that they are subject to further humiliation and hardships such as being ineligible for public assistance, including food stamps or housing, and being denied the right to vote.

Some activists suggest that by simply having two or three times more people exercise their rights by demanding a trial, accused persons could overwhelm the system and force a complete overhaul of the process as the number of judges, lawyers and prisons cells would be woefully inadequate to deal with such a crisis.  But those first individuals tried would have to be willing to risk the very real possibility of excruciatingly severe and long prison sentences.  Their courage would have to rival that of those early civil rights activists who were met with violence, jailing and, some- times even death.

As I wrote this article, the daily Mass readings were from the Book of Amos, which cries out for justice, especially for poor people.  That message, consistent both in Hebrew Scripture and the teachings of Jesus, calls us to work for a more just and compassionate sense and system of justice than that which is practiced in our society.  It calls for fewer and shorter “vacations” for our friends on the soup-line.


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