Imagine you’re homeless, you get arrested for sleeping under a bridge, and a judge sets your bail at $5,000. You probably don’t have many dollars to your name, much less thousands, if you don’t have a home. Nor can you afford legal representation.
So you just sit in jail.
This is what happened to Edward Hysquierdo last year.
“You got to sleep under a bridge. Poor gentleman can’t afford a lawyer, that’s for sure,” said the judge during Hysquierdo’s hearing after asking if he needed a court-appointed attorney.
Loetha McGruder was pregnant, had a 4-year-old with Down syndrome and a 10-month old infant at home and was pulled over for driving 10 mph over the speed limit. Instead of just getting a speeding ticket, she ended up in jail for five days because she could not afford the $5,000 bail. The officer said she failed to present proper ID.
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Five days behind bars for no ID, supposedly, though the original offense was driving at a speed that isn’t uncommon for most of us, even if it is illegal.
Maranda O’Donnell was a single mother who was arrested for driving without a license. She had to stay in jail for two days because she couldn’t afford $2,500 in bail.
This isn’t right.
These questionable cases and others took place in Harris County, Texas, where a week ago a federal judge ruled that it is unconstitutional to detain people for low-level offenses just because they can’t afford to post bail.
“Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention,” said Judge Lee H. Rosenthal of Federal District Court. The judge noted that 40 percent of those arrested for misdemeanors in Harris County had been detained until trial or their cases were resolved.
So how many other homeless people or single mothers had to sit in jail for extended periods for no good reason?
Reading this story, my mind flashed back to the Department of Justice’s Ferguson Report in 2015, which discovered the same war on the poor was happening in that troubled Missouri city. In 2016, President Obama’s DOJ issued a warning to municipalities that engaged in these practices. CNN reported in March 2016, “Ferguson is far from alone, with similar practices found around the country, the Justice Department said in separate letter to court administrators.”
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So how widespread is this problem? A 2015 study by the Vera Institute for Justice reported that about 730,000 people are in jail at any given moment in the United States, and that that number includes many non-violent offenders who simply don’t have the means to post bail. Most of 12 million arrests each year are for low-level crimes. “We are punishing people for their poverty,” says the Vera Institute’s Nick Turner.
In their 2017 report on mass incarceration in the United States, the non-partisan criminal justice reform advocacy group Prison Policy Initiative asks, “Does it even make sense to arrest millions of poor people each year for minor offenses, make them post money bail, and then lock them up when they can’t afford to pay it?”
No, it doesn’t make sense, nor is it morally defensible or constitutional.
The answer to this problem is to begin to assess whether arrestees should continue to be detained based on the risk related to their crime, not merely their bank account. There is no good reason why homeless people who trespass or mothers with lead feet — who pose little threat to anyone — should spend days in jail. Some municipalities have enacted this kind of reform with success.
“Liberty is precious to Americans, and any deprivation must be scrutinized,” said Texas Supreme Court Chief Justice Nathan Hecht in the federal order that put a temporary stop on Harris County’s deplorable bail system.
Precious indeed. And it’s shameful that such injustices ever happened in Harris County, Ferguson or anywhere else in a country that champions liberty as its highest value.
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