Arrested? How making bail determines your experience with our justice system

I was 19 years old when a car turned left in front of me without looking and I plowed into it. First responders placed me on a stretcher and loaded me into an ambulance. The police officer on the scene asked me for my license and registration. The contents of my purse had spilled in the back seat of my beat-up Buick Somerset on impact. I couldn't produce them.

Six years later, I was a new mom and got pulled over with my baby in the car. Turns out there was a bench warrant for my arrest for driving without a license. All those years ago, a citation had been issued and I had failed to appear in court. I had no idea. I could have gone to jail that day, but lucky for me, I didn't.

This is the memory that springs to mind in conversations around bail reform. States like California, New Jersey and Illinois are eliminating or heavily reforming their pretrial processes. Meanwhile, Kentucky legislators have proposed a bill to abolish charity bail assistance from organizations like The Bail Project whose objective is to restore the presumption of innocence, reunite families and challenge a system that criminalizes race and poverty.

Bottom line? Bail penalizes the poor.

The purpose of bail

Bail is not punishment, determination of guilt, nor is it a fine. It exists as an incentive to return to court. Bail is set with consideration of the severity of the alleged crime, flight risk of the defendant and the safety of the community. A judge can withhold bail if there is a concern for public safety or set no bail at all and let the person go on their own recognizance. But what people forget most is that bail is set before any evidence or defense is ever presented in a criminal case. It is decided after the initial arrest. But whether you can afford that bail remains a determining factor in your experience with our justice system.

Those who do not have the means sit in jail waiting for their day in court. We're not talking hours; we're talking weeks, months even. Meanwhile, they lose jobs, housing and even their children. Many states' pretrial processes push indigent citizens deeper into poverty.

The missing link

A judge asks if a defendant can afford a lawyer, but the answer to that question does not prompt the court to assess a person's ability to afford bail. Making bail remains a luxury reserved for those privileged enough to afford due process. What is supposed to be a constitutional right to due process according to the 14th Amendment, a speedy trial per the Sixth Amendment and without excessive bail, fines, fees or abuse per the Eighth Amendment is currently a privilege.

"Excessive" is relative to wealth, and if someone is sitting in jail pretrial not because they are deemed a public safety threat but because they cannot afford bail, I would say the amount required was excessive.

In 1964, Attorney General Robert F. Kennedy testified before Congress that the "problem, simply stated is: The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail ... bail has become a vehicle for systematic injustice."

That was 58 years ago, and still, here we are.

The cop who pulled me over didn't arrest me. Instead, he said something about me driving a "nice car" and him knowing the neighborhood listed on my current license was a "good" one. I was able to drive home and hire a lawyer before heading to court. But what if I hadn't had a nice car? What if I was struggling when he pulled me over? What if I wasn't white? Would he have been as kind? Would I have been arrested? I shudder to think what would have happened to my daughter that day had we not been able to drive home.

Too many people in this country don't have to wonder. They've lived the horror of landing in jail for minor offenses. We have to have meaningful bail reform. We have to fix the pretrial processes that make organizations like The Bail Project a necessary stopgap for the failures of our justice system.