When Poverty Becomes a Crime 

Rev. Alexander E. Sharp Collateral Consequences, Harm Reduction

When it comes to criminal justice in the United States, it is comforting to believe that “poverty is not a crime” and we are all “innocent until proven guilty.”  But these are platitudes, mere empty words. Nobody knows this better than those who sit in jail awaiting trial, often for months, only because they are too poor to afford bail.    

The 8th Amendment to our Constitution recognizes the use of bail. In a frontier society, bail might have been necessary to ensure that the accused did not skip town to avoid trial. Today, however, this is not an option for most of the poor in our crowded cities. Instead, money bail has become one of our many techniques to ensure that large numbers of poor people, mostly Black and Brown, end up in prison. 

In 2016, the jail population was over 730,000 on any given day in the United States. Of this number, approximately two-thirds were detained solely because they could not post bond. Most were being held for non-violent offenses. 

In the last few years, the use of money as bail, or “bond,” has been challenged in Washington D.C., New York, California, and perhaps most successfully, in New Jersey. In Illinois, legislation was filed yesterday –  The Pretrial Fairness Act  – that would reform the pretrial process in ways that are fundamental and long overdue. This legislation deserves our strongest possible support.  

Why is the Pretrial Fairness Act so important?

Most fundamentally, it would end money bail. It is simply immoral for personal wealth to determine whether someone will be detained in jail or permitted to go free.  

More broadly, the use of money as bond is wrong because it creates two separate systems of justice. How does this happen? 

In Cook County, Illinois, individuals await trial for an average of three months. Sitting in jail even for a few days, defendants can lose housing, jobs, participation in education and training programs, and may have to pay larcenous fines to recover an impounded car.    

When people are not able to meet bail, they lose the chance to arrange a defense while awaiting trial. This is not true for the wealthy.

Of greatest long-term consequence is the likelihood that those who have been detained often plead guilty rather than going to trial, especially when prosecutors pressure them to do so. (Shockingly, 95% of all cases in the Cook County system are settled through plea bargaining.)  Upon leaving prison, those individuals are burdened with a criminal conviction for the rest of their lives. So much for another platitude: “you’ve paid your debt to society.” 

Since SB 4025 will end money bail, some will ask how we can ensure that the public will be protected from the release of potentially violent individuals. The answer is clear. Judges already have the ability, indeed the responsibility, to make such judgments. Wealth of the defendant should have no relevance. In fact, when bail is a choice, those who are dangerous but can afford it become a threat. 

One of the very important things the Pretrial Fairness Act would do is require judges to do a much better job of determining who should sit in jail and who should be released. Right now, in too many cases, bewildered defendants, accompanied by public defenders who barely know them, appear before a judge for an average of about 40 seconds.

The bill includes many other sensible reforms. It will, in effect, “deputize police,” thereby expanding their ability to release those arrested without requiring a pretrial appearance before a judge. Of special relevance to Clergy for a New Drug Policy, it does not permit the pretrial incarceration of people accused of low-level drug possession.

In short, there are many important policy reasons why those of us in Illinois should support the Pretrial Fairness Act, and those of you across the country should insist upon similar legislation for your state. 

But at the end of the day, the words of Sharone Mitchell, Director of the Illinois Justice Project, capture what matters most: “What we talking about is punishing people pretrial, not because a judge is saying that they’re too risky to be released or anything, but just because they are poor, and that’s just not right.”