Thursday, August 31, 2017

Human Rights and Bail Reform - Disrupting the Criminal Courts

Bail in the US court system has resulted in human rights violations for thousands of defendants.  Anyone who watched 60 Minutes this past week would have seen the impact of bail requirements on the hundreds of detainees at the Cook County Jail and the efforts of its warden to remedy a broken system.  Nearly all of the detainees were men of color and at least half of whom were being held on non-violent offenses such as driving without a license, stealing small amounts of goods.  The warehousing of men of color was evident.

Bail has been used as a mechanism to ensure that those too poor to pay bail are further locked into poverty.  US courts have historically required bond (bail) for misdemeanor charges.  Even the lowest of bail, sometimes $100.00, is beyond the financial ability of many defendants.  

Civil and human rights violations result.  The Universal Declaration of Human Rights demands that each individual enjoy the right to work.  Yet for the poorest among us, minor infractions can result in loss of work because of incarceration pending trial.  Poor defendants' further decline into poverty is accelerated due to the resulting unemployment.  Among other human rights violations, is the right to fair trial.  Defendants forced to remain in custody are denied access to counsel.  Even if counsel is appointed, which is not assumed at misdemeanor arraignments, those in custody are dependent upon the unpredictable visits of counsel.  They are  deprived of the ability to collect exculpatory evidence.  

Not least among the violations is the lack of respect and dignity endured by some of our most vulnerable residents.  Mothers accept plea deals so they can be reunited with their children.  Fathers plea so they can return to their families, hoping to be able to continue supporting them through work and parenting.  

Bail reform projects have been increasing across the country.  In Texas, a civil rights lawsuit was filed challenging misdemeanor bail practices as due process violations.  Federal District Court Judge Lee Rosenthal ordered Harris County to stop the practice of permitting defendants in misdemeanor cases to languish in jail pending trial because they cannot afford bail.   Harris County encompasses Houston and should be a warning to other cities. The ruling on the temporary injunction is 193 pages long and details  myriad constitutional violations.  Given the extent f the court's deliberations and examination strongly portends Plaintiff's success on the merits.  In Massachusetts, donations to bail organizations have resulted in hundreds of the incarcerated being released as the organizations post bail on behalf of the poor.

This sort of large-scale disruption has been a long time coming in the criminal justice system.  Out of the chaos will come fiscal benefits to municipalities who no longer will incur the expense of housing indigent misdemeanor defendants.  More locations are voluntarily reforming bail schemes.  Colorado is reviewing its bail system while New Jersey eliminated  most monetary bails.  

At its annual meeting in August, the American Bar Association recommended major bail reforms.

Our bail system is one of our national human rights shames.  Kudos to those creating change.

http://lawprofessors.typepad.com/human_rights/2017/08/human-rights-and-bail-reform-draft.html

Criminal Justice, Margaret Drew | Permalink

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