TO BAIL OR NOT TO BAIL

“What is bail, Mr. McLaughlin?”

I got that question a lot when teaching the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” the Amendment reads.

My explanation went to several concepts, the first being the “innocent until proven guilty in a court of law” principle. “Not everyone who gets arrested is guilty and that’s why we have bail,” I’d explain. “It says in the Sixth Amendment that an arrested person has a right to a speedy trial but sometimes it takes months to schedule it.”

Although a person arrested has to be able to see the judge within three days, that’s just to plead guilty or not guilty. If he or she pleads “not guilty,” then a trial is scheduled but an attorney for the arrested person often asks for a delay of weeks or months to prepare the case for defense. Meanwhile, a judge will allow a release from jail if a certain amount of money is put up — that’s called “bail.” The money can come from the defendant, a relative, a friend, or someone else.

For the most serious charges like murder, a judge might rule that no bail is allowed, or if it is, then a huge amount of money would have to be put up. Sometimes it’s in the hundreds of thousands of dollars or more. Most people cannot raise that kind of money. Sometimes though, a family member would mortgage his/he house to raise it. Whatever the amount of bail, it is given back when the defendant shows up in court for trial. If he or she doesn’t show up, then the family members can lose their house.

It can be persuasive if an arrested person’s mother, for instance, mortgages her house to bail out her son. Even if the evidence against him is strong, it would take a real lowlife to skip out and make his own mother homeless. If nobody out in the community is willing to come through with bail money, that’s a sign for the judge too. It may signify a lack of support that no one out there cares enough about him or trusts him. The judge might decide he shouldn’t trust the person either and rule that he/she stay in jail until trial. 

Before Covid, I spent four years as a volunteer at the Cumberland County Jail in Portland, Maine doing a Bible Study class. Each week, about 8-12 inmates came into my classroom. Some had been to court and either pled guilty or were found guilty and sentenced. Others had been arrested, had pled “not guilty,” and were held awaiting trial because no one bailed them out. Most had been through the cycle many times and had spent almost their entire adult lives in jail or in prison. They were very familiar with how the system worked.

Three out of four were addicted to alcohol or drugs and had burned through friends and family along the way. Many had lived on the streets and were “frequent fliers” at the jail. Many, if not most, had mental health diagnoses and took psychoactive medication daily to remain stable. They tended to go off their meds on the outside and used alcohol and drugs instead which inevitably put them right back in jail for one thing or another. These men were seldom bailed out. 

Some leaders in cities and states run by Democrats have ruled that the bail system discriminates against poor people. They claim guilty rich people can get out of jail while innocent poor people must stay in. Some came up with a questionnaire to determine how likely a defendant is to show up for trial after being released. In New York City, for example, a new law went into effect last January eliminating cash bail for up to 90% of arrests.

By the end of February police there were blaming the new no-bail law for a significant spike in crime. Adding to this were progressive district attorneys who refused to prosecute many other crimes. Then came the Covid-19 epidemic and more inmates were released from jails and prisons before their sentences were up. Then came Black Lives Matter protests, many of which turned violent with riots with looting. On July 6th, New York City Police Commissioner Dermot Shea called all this a perfect storm resulting in a tripling of people shot during the previous week compared to the same period in 2019.

Dermot Shea

Will this mean the end of bail reform? We’ll see. Meanwhile lots of New Yorkers are staying at their Maine and New Hampshire vacation homes a lot longer than usual. Many others are buying up property here.