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.
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.
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.
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.