Sandra Bland's Death Highlights the Outrageous Truth About Bail

July 23rd 2015

We still don’t know exactly what happened to Sandra Bland. We know she was a 28-year-old Black woman from Chicago. We know she was visiting Texas, home state of her alma mater, Prairie View A&M, where she had just gotten a job she was reportedly very excited about. A dashcam video shows she was pulled over for a minor traffic violation that somehow led to her death three days later in a jail cell. And while police are saying that she hung herself in a jail cell using a trash bag, her family and friends are saying she had every reason to live. New bits of information emerge every day, and the story of what happened to Sandra Bland is slowly being pieced together.

Sandra Bland’s story wouldn’t need piecing together if she were still alive. And if she didn't spend three days in that Texas jail, she might be. Could excessive bail be, in part, to blame? We do now know that her bail was set at $5,000. Bland left a voicemail for her friend, which was released late Wednesday. 

According to Mother Jones, Sandra had been in contact with her family over the weekend to try and post bail. A bail bondsman was among the last to speak to her. While, yes, the police officer who threatened her with a Taser (and is now on paid administrative leave for allegedly violating police policy) is responsible for her detainment, it's possible that bail was a roadblock to her release.

Sandra Bland’s story is, in some ways, reminiscent of Kalief Browder's. Last month, Browder took his own life at 22. He had been arrested for a petty crime at 16, and although likely innocent, was held in New York’s Rikers Island for three years—two of which he spent in solitary confinement where he routinely endured beatings from both inmates and guards. By the time charges against him were dropped and he was released, there was no recovering from the trauma he had experienced. Sadly, Kalief Browder became another casualty of a broken system.

The media portrayed the Browder case as one of torment and woe. Kalief’s name, martyr-like, was woven briefly into the rhetoric of prison reform. His story was called an American Tragedy as we lamented the tortuous practice of solitary confinement. Then, Rachel Dolezal took center stage and the nation became more interested in her charade than in the failings of our courts. Had we paid more attention to Kalief, though, we might have entered into a conversation about the way we do bail—considering that Kalief Browder was arrested because someone accused him of stealing a backpack and he was incarcerated because he couldn’t afford to pay his bail of $3,000-- the original bail amount.

Bail is typically used as a means to ensure an accused person will return to court to enjoy their due process. Due process is supposed to balance the law of the land with the individual’s liberty, and ensure that justice is administered equally and fairly to all citizens. Unfortunately, our bail system does not function the way it should. It has become a mechanism of discrimination, working against due process, and serves more than anything to keep our already overcrowded jails filled with impoverished bodies.

For a nation that has the highest incarceration rate in the world, we should be doing more to ensure that those who should not be locked up, are not put behind bars. Yet somehow the fact remains that at any given time, there are half a million people sitting in jail simply because they can’t make bail. Like Kalief Browder, many of these people are not convicted and are waiting for trial. And also like Kalief, many of them are accused of nonviolent, petty crimes.

Take Anthony Cooper. He was picked up on June 13 for public intoxication at a bus station in Dothan, Alabama. Since he couldn’t pay the $300 bail associated with his offense, he was sent to jail, for days, to await trial.

Learning more about 56-year-old Cooper, it is understandable why he couldn’t just pay the $300. Like many older Americans, Social Security benefits provide his only source of income. But unlike his peers, he suffers from mental illness and is illiterate. As Liz Szabo reported for USA Today, “Stigma against the mentally ill is so powerful that it's been codified for 50 years into federal law, and few outside the mental health system even realize it.” Our great moral legacy lives on. So, with a mental health system in tatters and little hope in the way of social programming (among countless other barriers), Cooper is easily considered a vulnerable member of society. No wonder he found $300 a hard sum to produce.

Like many jurisdictions across the country, the courts in Dothan, Alabama determine the amount of bail using a bail schedule. The schedule provides guidelines, based on types of offenses, for how much someone owes the court in order to be released after they have been arrested. It calls on those arrested for even the pettiest of crimes (such as traffic offenses, and Cooper’s public intoxication) to pay somewhere between $300 and $1,000.

Unlike many other jurisdictions, though, Dothan, Alabama did not stray from its secured bail system—ever. If an arrested person couldn’t pay the bail amount required of them in cash, then release was not an option. This explains why Cooper was faced with pretrial detention (which in Dothan might have only been days, but can be months or years elsewhere)-- that is, until lawyers Mitch McGuire and Alec Karakatsanis entered the picture.

McGuire and Karakatsanis filed a class-action lawsuit on Cooper’s behalf, calling the Dothan bail system unconstitutional. They asserted that allowing some people to purchase their freedom while keeping the poor locked up simply because they couldn't afford otherwise was a violation of the Equal Protection Clause of the 14th Amendment.

The Dothan courts altered their bail policy at the end of last month, and now accept property bonds and bail bonds secured through an agent in addition to cash.

Adding bail options, realistically, has little effect on how the current system is stacked against poor people accused of nonviolent misdemeanors. If a person has no money or property, and their family has no money or property, and a bail agent refuses to post a bond (as they often do when bail is considered low), then bail is not made at arraignment. Choices, at that point, are limited: sit in jail until trial and endure, like Kalief Browder did, and hope for a better fate, or plead guilty even if you’re not, just to get out.

Neither alternative is good. Being incarcerated is scary. It’s dehumanizing. And it can destroy a person’s life. So can a criminal record, which is what you get if you plead guilty.

As reported in the Guardian, “making bail at arraignment is probably the most critical factor in the outcome of a criminal case”—not whether the defendant is actually guilty, not the actual details of the case, but making bail. This is because prosecutors leverage bail to yield extremely high conviction rates. Using freedom as a bargaining chip with those unconvicted defendants who remain in jail, they trade plea deals for releases. New York is a prime example of this practice: pleas are responsible for 99.6 percent of the convictions in misdemeanor cases.

The bail system does not look any better from another perspective. It is just as illogical to release a potentially dangerous suspect because he has a lot of money and can afford bail, as it is to detain a (probably) harmless suspect because she is poor. But alleged serial killer Robert Durst was released from jail in Galveston, Texas, because he could afford the price of freedom.

What it boils down to is this: there is one legal system for the haves, and another one entirely for the have-nots. Innocent until proven guilty, that most sacred principle of the American criminal justice system, is only true for the former.

This story was updated to include information about Bland's phone call to her friend, arrest and the ongoing investigation. 
This story first published at 6:24 p.m. on July 22. 

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