A Tale of Two Systems
by Marcy Ziegler
June 5, 2020
I cut social media ties with my best childhood friend today. Leah and I now live in different states and don’t have a ton in common all these years later. But I didn’t know how different we’d become until the wave of protests over police brutality against black Americans hit us.
See, I live in the Louisville, Kentucky area. Louisville — where an EMT named Breonna Taylor was killed by a police force executing a no-knock warrant. Breonna had no criminal record. She wasn’t the subject of the warrant. And the real suspect was already in custody at the time her home was stormed and eight bullets pierced her skin, killing her in her own bed.
Thousands of Louisvillians have marched for eight days now, protesting what happened to Breonna and so many others. People I know have organized marches, provided supplies, educated friends and gotten shot with rubber bullets. All in the name of positive change.
So when I saw Leah’s meme — some Twitter post along the lines of “This just in — Hollywood Celebrities donate millions to looting cleanup efforts. Just kidding, they donated to bail projects” I cringed. And then I weighed in. I tried to tell her why donating to a local bail project is important. Why the cash bail system is deeply flawed. Why we should care about people who get arrested.
I’ve spent 20 years in the criminal justice system, both practicing and teaching. And what I didn’t know years ago is that the bail system in this country is punitive and ineffective. Here’s why:
When someone gets arrested for a crime, they usually have a bail immediately assigned based on what the arresting officer chooses to charge. This is particularly true for minor crimes, like violating curfew, trespassing, assault — these are all crimes that usually come with a statutory bond at the outset (assuming that the officer doesn’t choose to just summons you back to court, in which case you don’t have to post a bail at all). If you can afford your bail, you get out pending your trial. If you can’t, you don’t. So, let’s look at the consequences of this in reference to two different defendants, each charged with misdemeanor trespassing as the result of a Friday night altercation at a protest in a city with a 9 pm curfew.
One makes bail immediately. He’s out by Saturday morning. He rests a bit, and then goes back to work on Monday. During the week, he takes an afternoon off and meets with an attorney whom he hires to represent him. It’s expensive, but he figures it’s worth it. He’s able to meet twice with this attorney before his trial date in a month, and during these meetings he explains that he didn’t intend to trespass that night — but that he got stuck in a crowd of people. He tried to leave by curfew but found his tires slashed and had to wait on a tow service. His attorney tells him to get the record of the time he called for the tow. Once he sees the 8:25 pm call, he presents the record to the prosecutor and the charge is dismissed. It’s a flash in the pan for the guy and a good story to tell later on when he wants to prove his street cred with his progressive friends.
Guy #2 isn’t so lucky. He doesn’t have the money to pay the bail right away, so he sits in jail until his arraignment Monday morning (at the earliest). The public defender didn’t get a chance to meet him before the arraignment but does tell the judge that he cannot afford bail and asks that he be released on his own recognizance. The judge declines, because he prefers a full bond reduction hearing, and we simply don’t have time for that on an arraignment docket. Meanwhile, Guy #2 has just failed to report to work and loses his job. At the bond reduction hearing on Thursday, the Judge learns that the defendant was arrested as a part of a protest. This judge thinks protests are dangerous and that looting across his city was out of control. As a result, he declines to reduce the bail and the defendant is remanded into custody. He meets with his public defender for about fifteen minutes the morning his trial is set. Because he didn’t get to talk much with counsel before trial, his lawyer didn’t know about his slashed tires the night of the protest. And because he didn’t make bail, he wasn’t able to get the record of the call to the tow service at 8:25 pm that night. His attorney tries to get a continuance of the trial to investigate this, but it’s denied. He gets tried, convicted, and sentenced, and is released on time served. He now has a criminal record and no job.
What is the main difference between these two men? Same crime, same defense. Massively different consequences.
Money. Money is the only thing that separates these people. Money that tends to follow families, to associate with whiteness and privilege and pedigree and all of those things that don’t really matter. Until they do.
What Leah didn’t understand is that money can make the difference between a charge being a big nothing or a life changing event. And not only are people today being arrested in relation to a pretty important cause, but they are presumed innocent. Innocent until proven guilty. Getting them out of custody prior to trial doesn’t mean they will be found not guilty and it certainly doesn’t mean they won’t face punishment.
What should make the difference between you being convicted and acquitted should be the level of proof of what you did, not how much money you had. But when we tie income and wealth to being incarcerated, it becomes far more important than it should. And that income and wealth are overwhelmingly tied to privilege and to whiteness. And it directly fosters white supremacy.
Leah refused to listen to any of this. Told me I was free to disagree, but to do so on my own page. She deleted all my comments explaining this. “We can agree to disagree.”
No. No, we can’t. She refused to listen. Don’t do the same.
If you want to donate to cash bail projects, you can do so at https://bailproject.org/
