Vol. 79/No. 35      October 5, 2015

That’s the opening sentence of an article in the Aug. 16 New York Times Magazine that describes how bail — originally a means to protect people accused of a crime from being arbitrarily jailed in advance of a trial — has become a routine and widely used weapon to beat down working people and pressure them to plead guilty.

The U.S. has the largest prison population in the world, with 2.2 million people incarcerated, most of them in state and local jails. Some 60 percent of the 750,000 in city and county jails at any given time are awaiting trial or hearings and have not been convicted of anything. They were either denied bail or couldn’t pay it.

The Times article “The Bail Trap” by Nick Pinto is a reflection of the concern in ruling class circles that the huge number of prisoners is becoming too expensive to maintain, is causing hatred for the capitalist justice system and could lead to social explosions.

Their worries have deepened in the face of large protests against police brutality that have taken place coast to coast over the last year, which have succeeded in forcing the rulers to rein in some of the cop violence.

The examples cited by Pinto are enough to make your blood boil.

Construction laborer Tyrone Tomlin was arrested in November 2014 after buying a soda at a corner store. Cops claimed the straw he was given with the soda was “a commonly used method of packaging heroine residue.”

Prosecutors offered him a plea bargain: admit to a misdemeanor charge of criminal possession of a controlled substance and they would propose just 30 days at the infamous Rikers Island New York City prison. Tomlin refused. The judge set bail at $1,500, which Tomlin couldn’t pay.

He spent the next three weeks at Rikers, until going to court for a Dec. 10 hearing. Prosecutors then handed over a Nov. 25 report from the police laboratory that said “No Controlled Substance Identified.” All charges were dropped and Tomlin went home, but not before being roughed up while incarcerated.

Kalief Browder, arrested at age 16, spent three years at Rikers — nearly two of them in solitary confinement — accused of stealing a backpack. He never went to trial. Like Tomlin he insisted he was innocent, and refused to take a plea deal, including one that would have released him immediately. Prosecutors finally dropped the charges, but he never recovered from beatings and nightmarish conditions he faced in Rikers. He committed suicide this summer at age 22.

Plea deals instead of trials

In non-felony cases half of those who were not detained, either because no bail was required or they were able to pay it, were convicted, compared to 92 percent of defendants who are jailed until their trial, a 2012 report by the New York City Criminal Justice Agency stated.

The Eighth Amendment to the U.S. Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” As U.S. law evolved, bail was imposed for charges considered capital offenses to assure a defendant’s appearance at trial where there was an alleged flight risk or danger to the community. Most defendants were released on their own recognizance. But today, judges routinely set bail at hundreds or thousands of dollars for the most minor charges.

The way bail is used today makes a mockery of the right to be considered innocent until proven guilty. Pinto points out that the judge asks defendants who agree to a plea bargain “Are you pleading guilty freely and voluntarily, because you are in fact guilty?”

“Everyone in the room knows it’s not ‘freely and voluntarily,’” Public Defender Scott Hechinger told the Times.

Markese Mull from Ferguson, Missouri, can attest to that. In 2011 he was arrested and accused of assault for defending himself from an attempted robbery.

“Bail was set at $75,000, cash only,” Mull told the Militant by phone Sept. 14. He spent five months in jail before the judge agreed to lower bail. As a result Mull lost his new job at a bakery.

“The public defender only saw me two times. They’re not working for you for real,” Mull said. “I was innocent, but I still had to plead guilty. I didn’t have money for the fight.”

Over the last several years there has been a shift in the debate in the ruling class, with conservatives and liberals alike recognizing the problem posed for capitalist rule in the large number of prisoners and the disproportionate number of them who are African-American.

The 2016 Democrat and Republican presidential candidates “are showing how far they have moved from the days of their ‘tough on crime’ messaging,” noted Kira Lerner on the Thinkprogress.org website Feb. 18.

Both Republicans and Democrats are talking about ending mandatory sentences, focusing on “treatment” instead of jail time for drug offenses and limiting the use of solitary confinement, all part of what John Malcolm, a spokesperson for the conservative Heritage Foundation, calls a “paradigm shift.”  
 
 
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