The two images reprinted below have appeared widely in media outlets over the past weeks. Eerily similar? Both show armed police or soldiers carrying shields facing off against unarmed people of color. Without careful perusal, it’s hard to tell which caption belongs with which photo.

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“Liberian Soldiers Seal Slum to Halt Ebola” Associated Press, Aug. 20, 2014

“Photo Essay: Police and Protesters in Ferguson” St. Louis Post-Dispatch  Aug. 14, 2014

The Stories Behind the Photos

In Liberia’s capital city last week, residents of a densely populated, poor neighborhood protested when security forces sealed off their community as a quarantine measure in response to the Ebola outbreak. According to reports, residents asserted that not only had they been cut off from their homes but also that they were being disproportionately exposed to the virus because sick people from outside their community were being brought into an Ebola screening center set up in their neighborhood by the government.

In Ferguson, Missouri, when residents took to the streets to protest the shooting by a police officer of Michael Brown – an unarmed African-American youth, thousands of law enforcement officers as well as National Guard were deployed to contain the demonstrators. As of this writing, several hundred protesters have been arrested.

Poverty, Inequality and The Burden of Disease

Liberia is among the poorer nations of the world. In 2012 the gross national income per capita was $580; 75 babies out of 1000 could be expected to die before the age of five; and the total annual expenditure on healthcare was a meager $102 per capita. The top causes of mortality in Liberia include malaria, diarrhea, respiratory infections, AIDS and malnutrition.  Neither money nor the burden of disease is distributed evenly in Liberia. As calculated by the GINI index, Liberia is one of the least economically egalitarian countries in the world.

Fifteen years ago, Ferguson was a predominantly white middle class suburb of St. Louis. By 2010, the population was two-thirds black . Elizabeth Kneebone, a fellow at the Brookings Institution, notes that in 2014 every Ferguson neighborhood but one has a poverty rate over 20%, “the point at which typical social ills associated with poverty like poor health outcomes, high crime rates and failing schools start to appear.”

In the state of Missouri, the rate of poverty among Black men is twice that of white men (22.5% vs. 11.6%). Among Missouri women, 24.3% of Black women vs. 14.5% of white women are living in poverty. In St. Louis County (where Ferguson is located), the rate of emergency room visits due to asthma among children under 15 years is 52% higher than the overall rate for the state. (High rates of childhood asthma are associated with environmental pollution and substandard living conditions.) The rate of infant mortality is 9% higher than the state’s rate and 21% higher than the U.S. national rate. The rate of babies born with a low birth weight (an excellent indicator of women’s overall health status and of the child’s future health status) is 8% higher than the state’s rate, and 20% higher than the national rate.

The Legacy of Injustice: War on the Poor and the Ill

Liberians are struggling with the aftermath of two recent civil wars. “Liberian scholars offer a range of explanations for the years of conflict including ethnic divisions, predatory elites who abused power, a corrupt political system, and economic disparities. The Truth and Reconciliation Commission found that underlying those proximate causes, the seeds of conflict were sown by the historical decision to establish Liberia as a state divided between natives and settlers, and the use of force to sustain the settlers’ hegemony.” While many Liberians are incarcerated for the “crime” of being poor or disliked by the police, perpetrators of crimes against humanity during the civil war have not been punished. Following the civil wars, according to Amnesty International, “Senators, Deputy Ministers, police officials, Special Security Service agents and Liberia National Police officers were allegedly engaged in or ordered beatings, looting, arbitrary arrests, abductions, shootings, ritualistic killings and other abuses. In most cases, no investigations were carried out and no action was taken against alleged perpetrators. … Law enforcement forces were reported to have unlawfully arrested and detained people and to have used torture and other ill-treatment, including during attempts to extort money on the streets. … Conditions in police lock-ups were appalling, with juveniles and adults routinely held together. Detainees were often subject to abuse by police and other detainees. … The formal justice system often failed to deliver fair trials and due process. Lengthy pre-trial detention beyond that allowed by law was the norm, with roughly 90 per cent of prisoners being pre-trial detainees. As well as corruption and inefficiency, the system suffered from lack of transport, court facilities, lawyers and qualified judges.”

Residents of Ferguson are struggling with the historical legacy of legally sanctioned racial discrimination, nearly four decades of ‘trickle-down’ economics that have eliminated middle and working-class jobs in the mid-west and throughout the country, and housing policies that price low-income Americans out of the housing market and segregate people of color in densely populated neighborhoods with lousy schools and housing and crumbling infrastructures.

Ferguson residents are also struggling with what Michelle Alexander aptly calls the “New Jim Crow” – decades-long ‘tough on crime’ policies that primarily targeted men of color and have led to the United States claiming the highest incarceration rate of any nation in the world. In 2012, one out of every 200 Missouri residents was in prison or jail serving a sentence of one year or longer. And, unlike in much of the rest of the country, Missouri’s prison population actually rose 1.3% in 2012. Incarceration rates for white men in Missouri in 2012 were 650.6 per 100,000. Among black men in it was nearly six times that: 3,640 per 100,000. Law enforcement personnel, like members of all three branches of government in Missouri, are overwhelmingly white.

Last year, Ferguson used municipal court fines to fund 20.2 percent of the city’s $12.75 million budget. (Just two years earlier, municipal court fines had accounted for only 12.3 percent of the city’s revenues.) Incarceration rates specifically for Ferguson are not available. But, statistics posted on the Ferguson municipal website hint at the facts on the ground. In 2012 (the last year for which data are posted) Ferguson exhibited a striking gender imbalance in its population.

Male population 9,279  (43.9%)
Female population 11,856  (56.1%)

Women do live longer than men in most of the world, but the gender disparity in Ferguson is more in line with war zones – with countries like Liberia that have experienced lengthy civil wars — than with American “suburbs.” If I had to make an educated guess as to the whereabouts of the missing men I’d guess dead or in jail. The face-off in the photo above certainly makes that guess plausible.

For What It’s Worth

We Americans like to believe that “this kind of thing” could never happen “here.” We’re shocked by the egregious killing of a young man in Ferguson, by the outraged community response and by the overtly militarized law-enforcement response. We’re less shocked by the circumstances surrounding the outbreak of Ebola in places like Liberia. But – as we’ve seen over the past few weeks – the systemic inequalities that give rise to poverty  and disease “over there” also drive anger, distrust and mass incarceration right here in America.

With a nod to the Buffalo Springfield’s 1966 masterpiece: “There’s something happening here / What it is ‘IS’ exactly clear / There’s a man with a gun over there / Telling me I got to beware / I think it’s time we stop, children, what’s that sound / Everybody look what’s going down.”

Please check out my new book Can’t Catch a Break: Gender, Jail, Drugs, and the Limits of Personal Responsibility

And for more on the social context of responses to the Ebola outbreak check out: Ebola and US and Ebola, Secret Serums and Me

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$190 and Counting: Bail Blog #3

Click here for the story of Ginger’s arrest and my experience bailing her out: The New Price of Freedom: $40 (Bail Blog #2)

A quick refresher

In May 2014 Ginger called the police when a man (we’ll call him Pete) in the housing facility for formerly homeless men where she’d been living for the past year threatened to bash in her head and the head of her “nigger boyfriend.” The police came and arrested Ginger for spitting at the man. A transgender woman, she was terrified at being locked up in the men’s jail. She called me in tears and I came to the jail and bailed her out for $40. Three days later we went to court for her arraignment. She met her court-appointed public defender for the first time when he stood up as she was called to approach the bench.

Over the past few months Ginger has called me at least three times a week to make sure that I had not forgotten that I promised to drive her to court in July. Without access to a car, she worried that she wouldn’t be able to arrive for the 9:00 a.m. court session, and that even if she did arrive on time she would look disheveled. But mostly she wanted to be sure I’d be there to support her.

Ginger’s morning in court

Yesterday the big day finally arrived. Ginger had dressed carefully in jeans and a nice shirt that did not scream out either ‘male’ nor ‘female’; in other words, an outfit designed not to ruffle any feathers at the courthouse.

Our first stop was the clerk’s office. Ginger handed over the form showing the $40 bail which we assumed would be refunded when she came to court. After all, that is the purpose of bail. The clerk, however, explained that Ginger had been released on personal recognizance and the $40 was a non-refundable fee paid to the bail commissioner.$40 down.

Ginger then was told to pay the clerk $150 for the lawyer’s fee. Since her total monthly income is $700 (Social Security) out of which she pays rent, telephone, transportation, toiletries and other necessary expenses, the $150 cleaned her out for the month. (We later heard the judge tell a young white man that he either could pay the $150 or do fifteen hours of community service. Ginger was not given that choice – we do not know why.)

In the courtroom nothing seemed to be happening. A number of lawyers were chatting, several court employees were catching up on their weekend activities, and a handful of people like Ginger were sitting nervously waiting for the judge to arrive. The bailiff told us that Ginger’s lawyer would be late and so we sat down to wait some more. The judge finally entered the courtroom, everyone rose, and the first half dozen cases were called. Each took under three minutes; each was continued to a later date.

At 11:00 the judge called for a ten minute recess. Half an hour later the session had not yet resumed but Ginger’s lawyer finally arrived and came over to chat with us in the courtroom within earshot of at least a dozen people. He asked her if the man involved was in court. Ginger explained that Pete did not come and that he had met with her and the director of the transitional housing program at which time he told them that he did not want to press charges. The lawyer asked Ginger if Pete had written this down. Ginger said he had not and added, “Pete is not going to do something like that.” I silently observed that it’s unlikely that Pete is sufficiently literate to write a memo of this sort, and that even if he could he would not want to produce an official document for the courts out of fear that it could be used against him in the future. Ginger’s lawyer told us that when the judge called them they would set the next court date and that he has every hope that the charges will be dropped at that time. We asked whether he could request today that the charges be dropped but, the lawyer said, that’s not possible because Pete had not informed him that he didn’t want to press charges.

Since the lawyer had not been in touch with Ginger over the months between the arraignment and yesterday’s court date we were a bit miffed, an emotion I was ready to show but that Ginger – far savvier than I – refrained from expressing. A minute before the judge re-entered the courtroom the lawyer gave Ginger his business card and told her to tell Pete to call him. Ginger explained that “there’s no way Pete will call.” “That’s not a problem,” the lawyer replied. “You can call me and tell me that Pete doesn’t want to press charges.”

The judge called Ginger’s name. The lawyer agreed to a court date in September and a minute later the next case was called. Ginger is out $190 dollars and her case is still considered “open”.

Return to debtor’s prison

A 2014 report by the American Civil Liberties Union, Modern-Day Debtors’ Prisons: The Way Court-Imposed Debts Punish People for Being Poor, documents the resurgence of what look a lot like debtors prisons. “State and local courts have increasingly attempted to supplement their funding by charging fees to people convicted of crimes, including fees for public defenders, prosecutors, court administration, jail operation, and probation supervision. And in the face of mounting budget deficits at the state and local level, courts across the country have used aggressive tactics to collect these unpaid fines and fees, including for traffic offenses and other low-level offenses. These courts have ordered the arrest and jailing of people who fall behind on their payments, without affording any hearings to determine an individual’s ability to pay or offering alternatives to payment such as community service.”

Elizabeth, a homeless woman I met in Massachusetts at about the same time I initially met Ginger, decided one night to sleep on a bench at a train station. She had come to feel that it was too dangerous to sleep in more open places like parks where, as she explained, “people are murdered all the time.” At the station she was arrested for trespassing by a police officer who “doesn’t like homeless people.” In court she was ordered to pay a $300 fine. She did not have the money. Exasperated, she noted, “This is a waste of the court’s time…they should be going after real criminals.”

Living on Social Security, Elizabeth could not pay the $300 at one go. So, when a month or so later she called the police for assistance (a motel clerk tried to steal money from her), the officers who came looked at her ID, saw that she owed the $300 fine, and arrested and handcuffed her. “I spent three days in jail waiting for a judge because it was a three-day-weekend.” The lesson Elizabeth learned from this experience: If you have outstanding warrants – even for court fees – do not call the police even if you are being threatened or attacked.

Cases like Elizabeth’s are shocking enough. But if I hadn’t been able to help Ginger not only would she have sat in jail for three days waiting to be arraigned, but she also would have become one of the many women I know who have accumulated fees WITHOUT being convicted of a crime. As a consequence, she would be liable to be locked up for any minor infraction of the law: jay-walking, littering, or simply failing to pay the court fees on a case that was dropped or in which she was acquitted.

Something even conservatives can get behind

Not only are these practices likely unconstitutional under the Fourteenth Amendment’s Due Process and Equal Protection clauses, they are also fiscally nonsensical. We pay to keep people in jail awaiting arraignment or trial for the price of $200 or so per day because they cannot afford to pay bail as minimal as $100 [Guilty Until Proven Innocent]. And I saw in court with Ginger yesterday, we finance droves of prosecutors, public defenders and court staff who split their time between hanging around waiting for cases to be called and processing people like Elizabeth for “trespassing”.

Ginger would be the first to agree that violent criminals should go to prison. Indeed, she has been the target of violence far too often for too many years. But – I believe – she’d also be the first to agree that yesterday’s farce does nothing to keep her or anyone else safe. Quite the contrary, it sends the message that justice has a price – in Ginger’s case (so far) — $190.

Follow this link for another post on a related theme: Guilty Until Proven Innocent

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Massachusetts General Laws Chapter 123, Section 35 permits the court to involuntarily commit to an inpatient substance abuse treatment someone whose alcohol or drug use puts themselves or others at risk. Last week the Massachusetts ACLU, together with Prisoners’ Legal Services and the Center for Public Representation, filed a class action suit in US District Court in Boston challenging the constitutionality of sending women committed under Section 35 to state prison.

Melanie

Melanie grew up in a close-knit, working-class Boston family. When she had her first child, “The hospital messed up my C-section and left staples inside.” She developed a painful infection, and was prescribed Fentanyl, Percocet and Klonopin. Her second child also was delivered by C-section, and again there were complications. Six surgeries and many pain clinic sessions later, Melanie muses, “Maybe I was hooked on meds, but nothing touched the pain.” At about that time an acquaintance suggested heroin, which successfully quelled the agony while opening up whole new sets of challenges. A year or so later she moved out of the house she shared with her children and husband and moved in with her parents because she didn’t want her kids to see her high on drugs. Maintaining a close relationship with them, she shuttled back and forth between the two households nearly every day for a year or so.

Melanie’s parents desperately wanted to help but were out of their depth. Finally one day, after she called them from the police station in a neighboring town to tell them that she had been picked up for shoplifting at a local pharmacy, they discussed with the police and the judge the best course of action. Her parents and the judge decided that given the absence of a criminal record and the presence of a supportive family (and, I surmise, the fact that she and her family are white) the judge did not charge her with shoplifting. Rather, he civilly committed her under Section 35.

For the purposes of Section 35, a substance abuser or alcoholic is defined broadly and rather vaguely as a person who “chronically or habitually” uses controlled substances or alcohol to the extent that “such use substantially injures his health or substantially interferes with his social or economic functioning . . . or . . . he has lost the power of self-control over the use of [controlled substances or alcohol].” Petitions for civil commitments can be made by a relative, guardian, police officer, physician or court official, or one can petition for commitment on one’s own behalf. While the law requires that the court call for a psychological assessment, it is unclear what that assessment means. In any case, there is no trial, no due process, and no possibility for appeal.

What Melanie’s parents didn’t know is that under Massachusetts law, a person can be committed under Section 35 to prison if there is no space available at a licensed substance abuse treatment facility. Melanie’s parents thought they were doing the right thing. They thought Melanie would receive treatment for her addiction and maybe even for her chronic pain. They were shocked to see her handcuffed and led out of the courtroom. Sick and vomiting, she sat in a holding cell at the courthouse for a full day. And then she was shackled and put on the bus to MCI-Framingham, the medium security women’s prison where she spent the next month.

According to ACLU staff attorney Jessie Rossman, upon arrival at MCI-Framingham, women committed under Section 35 are strip-searched, deprived of their personal possessions, and issued a prison uniform and number. Then they “are sent to the medical unit for detox – what [the Department of Corrections] calls detox, which essentially is just you being given a bucket. They are given over-the-counter drugs like Tylenol and Tums,” but no medication such as methadone, Suboxone or Vivitrol which are frequently used to facilitate detox. After detoxification in the medical unit, civilly committed women are sent to “The Mod”, a large room with bunk beds where women being held pre-trial are imprisoned. Unlike other prisoners they cannot visit the library, pray at the chapel, or participate in prison programs. Civilly committed women at MCI-Framingham cannot even access the addiction treatment programs available to sentenced prisoners. Ironically, the original reason for this policy seems to have been to discourage MCI to be used as a treatment facility.

“If you build it they will come”

By every measure, the MCI-Framingham “solution” to drug addiction is a disaster. The average length of stay for women sectioned to MCI-Framingham is longer than for women sectioned to the Women’s Addiction Treatment Center (a “staff-secured, but not locked” facility) licensed by the Massachusetts Department of Public Health to treat women who have been civilly committed. According to data compiled by the Massachusetts Women’s Justice Network, women sectioned to prison are less likely to be released to an outpatient facility and more likely to return to court (11% compared with 3%). Most damning, women of color are more likely than white women to be sectioned to prison rather than to the Women’s Addiction Treatment Center (31% compared to 9%).

The way out of this mess suggested by nearly everyone – judges, prison officials, public health officials, legislators, Governor Deval Patrick and most advocacy groups — is to fund and allocate more substance abuse treatment “beds” (that’s the term that is used) in non-prison facilities.

On the face of it this argument makes sense, but a bit of digging through the record indicates otherwise.

Massachusetts opened the Women’s Addiction Treatment Center in 2007 in order to provide an appropriate treatment setting for women committed under Section 35. In a classic instance of “if you build it they will come,” the Massachusetts Department of Public Health reported in a February 12, 2014 hearing held at the Massachusetts State House that the number of women committed through Section 35 dramatically increased over the following years, growing from 347 in FY 2006 to 1591 in FY 2012. At the same hearing, Department of Correction Commissioner Luis S. Spencer reported that the number of women committed to MCI-Framingham also continued to increase, going up from 221 women in 2007 to 310 women in 2012.

Spencer explained that many of the people committed under Section 35 are not only dealing with addictions but also with other mental health challenges as well as physical health problems including diabetes, heart disease, COPD, liver diseases, infectious diseases, Hepatitis C and dementia. Many have long histories of sexual victimization, self-injurious behavior, and psychiatric treatment. Brian Sylvester of the Massachusetts Department of Public Health estimates that 20% of those committed through Section 35 do not meet the criteria for commitment; rather, they are committed because no one knows where else to send them. People self-commit and are committed by others because there are insufficient spaces in detoxification facilities, because their insurance will not pay for detoxification or rehabilitation or even because they cannot afford housing. According to Sylvester, “Section 35 has become the catch-all for gaps in the system: substance abuse, mental health, criminal justice and medical.”

It is a travesty that drug users who have not been arrested, arraigned, tried or sentenced are sent to prison. And it is a travesty that needs to be seen in the broader context of local and national policies. The National Institute on Drug Abuse states in its Principles of Drug Addiction Treatment, “To be effective, treatment must address the individual’s drug abuse and any associated medical, psychological, social, vocational, and legal problems.” But how (and the Institute does not ask this) can an individual’s vocational problems can be addressed when so many Americans work at jobs that do not pay a living wage, and when individuals with criminal records often cannot land a job at all? How can an individual’s social problems be addressed when poverty locks millions of people into communities with high rates of violence, when a quarter of American women experience sexual or intimate partner violence at some point in their lives? And how can an individual’s legal problems be addressed when the United States has the highest incarceration rate in the world?

As a nation we’ve gone the route of building more and more prisons in unsuccessful efforts to manage the devastation caused by economic and racial inequalities. I’m far from convinced that building more and more “staff-secured” treatment centers will prove any more successful.

You can read more on the confluence of punishment and treatment in Incarceration by Any Other Name: A Return to the Cuckoo’s Nest?

freeimage-4692086-webYou can read more on the problems of the bail system here: Guilty Until Proven Innocent

Last Saturday evening I woman I’ve come to know – I’ll call her Ginger — called me up in tears. She was at the police station in my suburban home town and she needed $40 (cash only) for bail. Homeless and disabled since her teenage years, she didn’t know anyone who had money or a car to drive to the suburban station. Feeling desperate, she called me, explaining that because of the long Memorial Day weekend she would be held in jail until Tuesday if she couldn’t come up with bail.

At the station a cordial police offer asked to see the cash and then told me to sit and relax on chairs in the station vestibule while waiting for the clerk to come. After about an hour the clerk arrived and, still in the vestibule, I handed over the $40 in a transaction that seemed weirdly informal. (I’ve never bailed anyone out before, but this is not what expected from years of watching Law and Order.) Half an hour later the police officer beckoned me to come inside and said, “There’s a problem.” It turns out that my friend didn’t have any identification on her so there was no way of knowing if Ginger was indeed Ginger. He asked if I could vouch for Ginger. I said yes. He asked how I know Ginger. I said I’m a Suffolk University professor and that for the past six years Ginger has been in a study I’ve been conducting among homeless and criminalized women. He jotted a few words down on a piece of scrap paper and then asked if there are other ways I can verify Ginger’s identity. Puzzled that my university credentials and a six year relationship were not sufficient, I managed to come up with that I was introduced to Ginger by a caseworker at a Boston shelter.

That seemed to do the trick and ten minutes later Ginger emerged from jail. She was shaking. My first thought was that it was a bit chilly out so I gave her my jacket, but she continued trembling so hard that she was unable to walk or talk. For a few minutes I couldn’t figure out why she was so upset. Ginger had been arrested before, she knew the drill, and all in all this suburban police station was relatively pleasant. Then, I looked at the paperwork she had in her hand and realized (part of) what was going on: The form telling her to come to Court on Tuesday morning listed her name as George. Though I knew that what she calls her “government name” is George, I’d forgotten how frightening it is for her to be “George” inside of a jail.

How It All Started

Born into one of the working-class Irish neighborhoods in the 1970s, Ginger knew, in her words, that “I was not a regular boy” since age five or six. Like many children who are different from their peers, George was the target of abuse. In neighborhoods like hers people who broke the gender code were beaten up. Ginger recalls that her mother’s house was repeatedly spray painted with the word “faggot,” rocks were thrown through the window, and her family was threatened with violence and ostracism. When she was thirteen, her stepfather, who also beat her mother, molested her. After a few stints in psychiatric hospitals where she was treated for PTSD, her psychiatrists signed the documentation for her to be classified as meeting Social Security’s criteria for disability (SSI) when she was fifteen. After a few particularly horrific attacks she left home in order to protect her family from further violence. She had heard that New York is the place to be “for girls like me,” and so that is where she headed. Young and petite, Ginger quickly found a job in a drag show, was introduced to crack, and started working the streets.

Like Ginger, many transgender women are forced to leave school in the wake of abuse and find it difficult to obtain employment in a society that often is not comfortable with gender diversity. Close to two thirds of transgender women having a history of incarceration, and transgender women are so frequently perceived to be sex workers by the police that the term ‘walking while trans’ was coined. Open and even chatty about almost all parts of her life, Ginger never talks about her experiences in men’s prisons. However, according to national studies over half of LGBT prisoners report having been sexually assaulted in prison – a rate 15 times higher than the general population. In the hypermasculine cauldrons that are men’s prisons, transgender women are particularly likely to be targets of rape. The night I picked Ginger up at the police station her trembling body gave proof to the terror and pain she had experienced in the past.

As Ginger and I sat in my car with the heater blasting she smoked a few cigarettes, the focus came back into her eyes, her slim body quieted down, and eventually she was able to tell me what happened.

After years of homelessness she had been placed by her caseworker into a room in a long-term shelter for men where she shares the bathrooms, kitchen and living room with approximately twenty men, some of whom have lived there for over a decade. Her caseworker told her that if she stays in the shelter, pays her rent on time and doesn’t make any trouble she’ll likely be eligible for a low-income apartment in two years or so.

On the night before the visit to the police station Ginger had made popcorn in the microwave in the communal kitchen. It burned and set off a fire alarm. On Saturday evening a shelter resident who had been harassing her since she moved in (for example, he often stands outside the bathroom and takes pictures of her coming out of the shower) burst into the living room and started screaming at her for waking him up the previous night. “He said he’s going to smash my head, ‘yours and your nigger boyfriend.’” (Ginger is white, her boyfriend is African American. He does not live at the shelter.) As the tirade went on Ginger did two things: She spit at him and she called the police because of the threats he had made.

Listening to Ginger’s account of the evening, I struggled with understanding why she called the police. Quite a few of the homeless and criminalized women I know have been locked up in the wake of turning to the police for help. In this era of mass criminalization, it is not uncommon for women (and men) to have outstanding warrants for a variety of technical reasons. Elizabeth, a rather weepy middle-aged woman whom both Ginger and I know, called the police because a motel she stayed at for a few nights wouldn’t return her room deposit ($50) in a timely manner. When the police came they looked at her ID, saw she owed court fees, and put her in jail for three days over a long weekend.

Aware that both of us know how often this sort of thing occurs – especially to homeless and to transgender people, as well as to sex workers and people of color – I asked her why she called the police. She was truly afraid for herself and for her boyfriend, she said, and she assumed that threatening to smash someone’s head is illegal. However, as it turns out, she explained, when the police came they told her that threatening is not against the law but spitting is.

The police took Ginger to the station in her slippers, t shirt, and draw string pajama bottoms; they cut the string off her pajamas at the jail. That is what she was wearing when I came to pick her up.

The estimated cost to the taxpayers for holding Ginger in jail for three days while waiting for a judge to come to court: $375.

The price of freedom: $40, which seems to be the current going rate for this kind of thing.

It’s time to reform the system.

You can read Part II of my adventures with Ginger here: The Courtroom Was a Circus

More of Ginger’s story appears in my forthcoming book Can’t Catch a Break: Gender, Jail, Drugs, and the Limits of Personal Responsibility.

 

 

You can read more about the problems of bail here.

A few days ago I ran into a friend of mine – I’ll call her Joy – whom I hadn’t seen for a while. In fact, she’d pretty much disappeared; she hadn’t picked up her phone or returned calls and I hadn’t received the Christmas or Mother’s Day cards she’d been sending me for the past six years. “Susan, I’ve been locked up,” she told me. “Why didn’t you call me from jail,” I asked her. “You know I would have come to visit.” “They took my phone so I didn’t have your number,” Joy explained. “You could have written – I would have come,” I continued. “Well, she said, I thought I was just going to be there for a few days so by the time you got the letter I’d be out.”

Here is what happened: “I caught a prostitution charge. I was in what they [police] call a bad neighborhood and a cop – he was from the gang unit — stopped me and ID’d me [asked to see her I.D.]. Then he arrested me for prostitution.” “Were you working the streets?” I asked (in the past she has worked in prostitution.) “No! I wasn’t. I’m not looking to go to jail. I told him [the cop] that, and I told him that there’s no way he could have seen me soliciting anyone – I hadn’t even talked to anyone. He said, ‘I’m a policeman and you’re a criminal. Who do you think the judge is going to believe?’”

“He brought me to the station and they told me I needed to pay $40 to bail myself out. I didn’t have $40. So they kept me in jail. Then, a few days later I saw the judge and he set $250 bail. I didn’t have that. So they sent me to MCI [state prison]. I was there for a month. Susan, I had to get out of there, so I told my lawyer to plead [guilty]. They let me plead for time served, so I got out.”

Wrong Place, Wrong Time

Like most incarcerated women, Joy is no violent, hardened criminal. Rather, she has, in her words, “the bad luck to be in the wrong place at the wrong time.” She was first locked up when she ran away from a juvenile treatment center to which she had been sent when she “acted out” after having been molested by a friend of the family. By the time she was twenty she was deemed disabled and qualified for SSI (Supplemental Security Income for disabled, poor Americans). Her medical challenges and diagnoses include impaired hearing, bi-polar disorder, PTSD, diabetes, insomnia, Hepatitis C, addiction, chronic hip and shoulder pain, lumps in several lymph nodes, and neuropathy in her feet. During the time I have known her the monthly SSI check has been approximately $740. That is her only source of income. Often homeless, Joy is vulnerable both to violent men and to overly zealous police and court officers.

Joy has been locked up at least a dozen times over the past fifteen years. However, to the best of her memory there was only one time that she was incarcerated as a direct outcome of a trial and sentencing. All of the other times she was locked up while awaiting trial or because she had violated the terms of her probation. In fact, among the criminalized women I have come to know the single most common reason for being locked up is for violating the conditions of probation. Typically these violations consisted of failing to attend AA meetings, missing an appointment with a PO, or being stopped by the police on a petty charge such as loitering. In other words, the initial offense was deemed by a judge to be too minor to require incarceration but the woman ended up serving time anyway.

Locked-up Awaiting Trial

Joy is one of thousands of women who spend time during any given year in the Awaiting Trial Unit at MCI-Framingham – the only state prison for women in Massachusetts. In fact, on a typical day forty-three percent of the women held at MCI-Framingham are in the Awaiting Trial Unit.  To be clear, that means that they have not been convicted of a crime. They are awaiting trial in prison because they could not afford to pay bail. Women often are held for substantial periods of time: The average length of pre-trial detention at MCI-Framingham is about 77 days.

Though far more men than women are incarcerated around the country, pre-trial incarceration has a disproportionately negative impact on women. In Massachusetts, while women comprise only 7% of state prisoners they comprise 33% of pretrial detainees held by the MA Department of Corrections. This disparity reflects the lower rates of major and violent crimes committed by women (fewer women are convicted and sentenced to long prison terms) and substantially higher rates of poverty among women. Women incarcerated in pre-trial status typically have been arrested for non-violent crimes and are too poor to pay even minimal bail fees. As Francesca, another woman who has been held pre-trial explains, “There are lots of women who are $10 short on bail. They can pay most of it but not all so they are kept in jail which costs the State a lot more.”

Francesca is right. According to the Massachusetts Bail Fund it costs the state around $125 per day to hold individuals awaiting trial. For a fraction of the cost to taxpayers to incarcerate people like Joy awaiting trial, money could be invested in community-based, community-run services that would help keep people out of jail. The costs to the accused individuals are even steeper: While sitting in jail waiting to be tried they stand to lose their jobs, their housing, their health care and the ability to care for their children.

According to the Justice Policy Institute, people who await trial in jail rather than out on bail are disproportionately poor and Black or Brown. And, people who are held during the pretrial period are more likely to be convicted and receive harsher sentences than those who are released on bail. This makes sense. If you can go home, fix your hair, clean yourself up and come back to court dressed in your best skirt and blouse you’re going to make a better impression on the judge than if you are brought to the courtroom in a prison bus, frightened and exhausted from nights in jail.

Bail Out

A variety of alternatives to monetary bail are being discussed and tried out around the country. And while I am in favor of most moves that keep women like Joy out of jail while awaiting trial, I think we need to be cautious about replacing monetary bail with other onerous or punitive policies. A few weeks ago Joy was picked up on a charge of distributing drugs. The “drugs” in question were a legitimate prescription that she had picked up at a local pharmacy for her own use. She needed this prescription and had no intention of selling it. A policeman arrested her as she left the pharmacy with an acquaintance she happened to run into. The pharmacy’s security camera recorded her purchase and subsequent interactions: No packages or money exchanged hands; she and her acquaintance had simply chatted. Because of the security camera’s tape Joy knows she will not be convicted. Bail was set at a couple of hundred dollars and Joy managed to bail herself out. However, as a condition of her bail she has been required to go to a “holding facility”  to wait for a bed in a rehabilitation program. This facility is located at a considerable distance from her family and friends, and it offers no programming or opportunities for women to earn money. She was told that she would be held for an indefinite amount of time and that it could be months before a bed would become available in a rehabilitation program. All in all, Joy says, it’s not really different from prison. She made the decision not to go. As a consequence, she assumes, she will be sent back to jail the next time she is stopped by a cop or sets foot in a courthouse.

Better Alternatives

Like most Americans, I had taken for granted that bail is the sensible way to make sure that criminals show up in court and do not flee before they can stand trial and pay their dues to society. But when I began to think about Joy and other women I know, I realized two things:

One: These women are not fleeing anywhere. They have children, they have families. They are not violent criminals. They are facing fairly short sentences. Bail serves no purpose in terms of ensuring that they show up in court.

Two: Several women I know (Joy is one of them) have been assaulted by men who were arrested for a violent crime but had the money to afford bail. In other words, bail did not prevent them from beating up women.

This simply does not make sense.

Nationally there is a recent surge of interest in developing rational tools for assessing whether or not an individual accused of breaking the law is violent and / or a flight risk. In states where these tools have been adopted, the rate of pre-trial incarceration declined and there has been no increase in criminal activity carried out by individuals awaiting trial at home rather than in a jail or prison. So yes, there are good economic and criminological arguments for overhauling or even abolishing the monetary bail system. And I’ll repeat those arguments to anyone who will listen. But that is not the whole story.

When a third of people who are locked up have not been convicted in a court of law, the story is about how we’ve flipped the core principle of American justice – innocent until proven guilty – on its head. The story is about a system in which people who can pay can get out of jail – even if they have been accused of violent crimes, while those who can’t pay are locked up – even if all they’ve done is steal some food.

The story is about freedom as a commodity that can be bought and sold.

For more on this issue check out The Pretrial Working Group. and the Massachusetts Women’s Justice Network.

You can read more about Joy in my new book Can’t Catch a Break: Gender, Jail, Drugs and the Limits of Personal Responsibility – available through University of California Press, Amazon and other bookstores.