Cash Bail

 Trump gave a press conference yesterday—ostensibly for the purpose of announcing a new executive order to eliminate cashless bail. In typical Trump fashion, the meeting quickly devolved far from its original purpose; and the bail policy got buried in the day's other news coverage. But I don't want to lose sight of how bad that policy is on its own. Even without all the president's various other extracurricular diversionary shenanigans yesterday, backing cash bail is cruel enough.

It's hard to think of a more blatantly unfair system than cash bail. It is quite overtly a way of punishing the poor more harshly than the rich. Of course, courts may ostensibly set the amount of bail without regard to a person's wealth. But, given wealth disparities, people will always have vastly different abilities to pay it. The "equality" of cash bail thus becomes another of those deceptive "equalities" of which Anatole France spoke: such as "the laws forbidding rich and poor alike to sleep under bridges." 

This is far from an original observation on my part. It's apparent to anyone who permits themselves to think about the cash bail system for longer than a few seconds; and it has struck many thinkers over the years as strangely incongruous with our democratic system of government and the principle of equal justice that supposedly animates our legal system. As Alexis de Tocqueville once wrote on the subject of cash bail, in Democracy in America: 

It is evident that a legislation of this kind is hostile to the poor man, and favorable only to the rich. The poor man has not always a security to produce [...]; and if he is obliged to wait for justice in prison, he is speedily reduced to distress. The wealthy individual, on the contrary, always escapes imprisonment [...] nay, more, he may readily elude the punishment which awaits him for a delinquency by breaking his bail. [...] 

Tocqueville reckoned the system of cash bail a holdover from pre-Revolutionary times—an aspect of the feudal and aristocratic law of the English courts that we had not yet managed to free ourselves of as a nation, despite our pretenses of democracy. And today—it would seem—after two centuries more of ostensible democracy—we have still not managed to rid ourselves of this rank injustice. 

The surface of American society is, if I may use the expression, covered with a layer of democracy, from beneath which the old aristocratic colors sometimes peep, Tocqueville concludes. (Reeve trans. throughout). 

Of course, the good news is that the White House has little direct authority over the bail policies of countless state and local jurisdictions. But Trump does apparently have power to affect policy in Washington, D.C., and his use of his bully pulpit to undermine bail reform efforts around the country is a repellant use of his office—particularly when we consider the cases that motivated people to reassess cash bail in the first place, such as that of a teenager who spent three years awaiting trial in Riker's Island, for charges that were ultimately dismissed—just because his family couldn't afford bail.

Is it really the role of the state to go about punishing people for being poor—locking up people for years longer than others based, not on guilt, but on simple inability to pay? Is poverty not hard enough already without the government also making it a crime? As the great Scottish humanitarian poet Robert Burns once bid us: 

Think on the dungeon's grim confine,
Where Guilt and poor Misfortune pine!
Guilt, erring man, relenting view,
But shall thy legal rage pursue
The wretch, already crushed low
By cruel Fortune's undeserved blow?