Isn’t it time to create civil rights for the poor?

What is it we like to say in America about our justice system? Hmm. Let me think.

Now I remember… “All people are presumed innocent until proven guilty.” If we actually practiced that we would reduce the number of people in jail and its related costs. In fact we might reduce that by up to 450,000 people.

scales of justiceThis number represents about two-thirds of the jail population; people who are not convicted. They are awaiting trial. There are costs to house them, feed them, monitor them and provide medical care to them. All this before the system even proves they are guilty. What about bail? If we relied on TV dramas as reality we would expect that people, except those who committed the most serious crimes, can get bail. They can go home and then return to court on their trial date. But life is not a TV drama. In the real world five out of six individuals sit in jail until their trial date are there either because (1) they can’t afford bail or (2) because a bail agent declined to post a bond.

This issue is not about the eventual determination of inmates’ guilt or innocence. It is about the inequity in the process. Two people may be arrested for suspicion of breaking the same law. When one can afford bail and/or fees, that person can wait for trial outside of jail. When another person cannot afford those things s/he sits in jail for however long it takes for a legal conclusion about the alleged crime.

The two individuals may be suspected of the same crime; they did not do the same time.

Now many jurisdictions are charging inmates at least part of the cost of jailing them in the first place. A simple Internet search reveals the appalling practices in some local courts and governments. These practices can keep people in jail, regardless of whether they committed a crime.

Riverside County, California has a new motto: “If you do the crime, you’ll do the time, and now, you’ll also pay the dime.” That’s how County Supervisor Jeff Stone explained a new policy that requires jail inmates to pay the cost of their incarceration. Just waiting for a bail hearing gets very expensive very quickly at $142 per day. Different jurisdictions have variations on the same theme. Courts are charging fees and direct costs to those they arrest. They are creating new fees that must be paid for release.

The Eighth Amendment to the U.S. Constitution states that excessive bail shall not be required, nor excessive fines imposed. So what happens when inmates are held in jail because bail is not affordable for them? And then the impact on them multiplies because they cannot pay their fees, in addition to the original bail amount? Inmates who must sit in jail until their trial are facing mounting fees. The fees are effectively creating excessive bail. They cannot pay to get out, but they also must pay for staying in.

Charging inmates for direct costs while in jail is generally a response to budget shortfalls, as defended by many of those jurisdictions. It creates a moral problem, if not an actual legal problem, when the fees cause disparate impacts. The differing effects can easily be demonstrated:

Typical cost to a low-income inmate who is, by law, presumed innocent but cannot make bail

  • Economic hardship because low income people are more likely to have jobs where they lose wages if they are not present at work
  • Loss of wages for indeterminate period of time until trial occurs
  • Economic hardship for mounting jail fees owed to government for extended stay

The irony is that in an effort to reduce the cost burden on the court system inmate fees are going to increase the need for social supports such as food stamps and cash assistance.

Our founding fathers had great foresight in writing the Constitution. At its heart they prepared for people to act like people. Their vision anticipated the big guy will always de facto have power over the little guy. Greed can blind us to the right thing to do. Over the years Congress and the courts have added amendments to the Constitution to extend its protections when needed. Civil rights protections institutionalized in the 14th amendment have helped level the legal playing field for black people. It has generated civil rights protections to those of different colors, ethnicities, sexual orientations, disabilities and more.

Perhaps it is time to extend civil rights protections explicitly to the poor.


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