Drop the name American Civil Liberties Union into a conversation in certain circles, and there’s a good chance you’ll be answered with some eye-rolling and mutterings about strident liberals and the erosion of all that made this country great.
That reaction shows a fundamental misunderstanding of what things do make this country great. Among those things are our civil rights. And what the ACLU hopes to do, as it scrutinizes the county’s legal system, is protect a sacred constitutional right. The ACLU has argued it’s unconstitutional to hold people who have been charged with misdemeanors or state jail felonies on bonds they cannot afford and has demanded the county legal system solve this problem.
While the First and Second Amendments get a lot of headlines these days, the Eighth Amendment also separates this country from politically corrupt, unstable and undemocratic nations.
The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The amendment is meant to prevent us from reverting to the ways of the Old Country, where class systems spared “gentlemen” from imprisonment while the peasants rotted in jail.
The Eighth Amendment has its origin in the British Magna Carta of 1215. At its core, it’s about punishment fitting the crime. “A free man shall not be (fined) for a small offense unless according to the measure of the offense, and for a great offense he shall be (fined) according to the greatness of the offense.”
Yet, according to the ACLU and other organizations, thousands of people are routinely held in jail for low-level offenses because they lack the wherewithal to make bail. Some are held for longer than the law allows awaiting trial and for no reason except that they can’t afford bail.
People with more money accused of much more serious crimes get out and stay out. Consider New York real estate heir Robert Durst, who admitted shooting his Galveston neighbor in the head and cutting him into six pieces. Durst easily made $300,000 bail in October 2001, and while free went on the run and became a fugitive.
Americans can’t let justice become more about money than it already is.
“Everybody has just grown so used to this notion that if you are accused of a crime, you have to pay somebody some money to get out of jail,” Charles Daniels, chief justice of New Mexico’s Supreme Court, told The Marshall Project, a nonpartisan, nonprofit news organization that seeks to create and sustain a sense of national urgency about the U.S. criminal justice system.
“Our judges have just gotten so used to putting a price tag on your presumption of innocence.”
It’s true that courts must set bail high enough to incentivize people to show up for their trials and keep them from fleeing. It’s also true that our legal system of high fines and fees is leaving thousands of people, who’ve merely been accused — not convicted — behind bars for long periods of time.
Prolonged incarceration of people who can’t make bail or pay fines is not only unconstitutional, but is an expensive burden on American taxpayers who must pay and shelter and carry the costs of needless incarcerations. Such policies also prevent the incarcerated from returning to work or providing for their families.
The ACLU has been highly critical of the county legal system and how it handles the release of people accused of crimes. County officials and judges had their own concerns about some of the problems and had been working to improve some of them.
But some local officials are taking issue with the ACLU’s insistence that the county release persons accused of state jail felonies or misdemeanors on a cheaper personal bond.
A personal bond is a bond stating a criminal defendant will appear at all future court dates. The accused doesn’t have to post bail, but will forfeit the amount in the bond if he doesn’t appear.
“I don’t believe it’s reasonable to say let everyone out on a personal bond that has a state jail felony or below,” County Court at Law No. 3 Judge Jack Ewing told The Daily News last week.
“That’s kind of the glitch in our working with them. That’s the biggest concern.”
Ewing’s concerns are reasonable. No judge wants to be the judge who allowed someone out on a personal bond to commit a heinous crime. But we’re talking about state jail felonies — fraud, theft, burglary and the like — and misdemeanors, not ax murders. Judges need enough discretion to keep truly dangerous people locked up, but those decisions should be made on factors other than the accused’s ability to raise money, on things other than economic class status, in other words.
When poor people are locked up for longer than a wealthier person would have been, the system is broken. It’s just that simple.
• Laura Elder