Holland Cooke: Section one of the 14th Amendment to the United States Constitution reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law nor deny to any person with its jurisdiction equal protection of the laws.” Yet, in some places where you end up after you’re arrested could depend on how much money you have.
Quick definition of terms, two words which many people erroneously use interchangeably, jail and prison. Prison is where convicts end up when found guilty. Jail is where inmates wait for their day in court if they cannot pay cash bail. It’s a system being challenged around the U.S.A. Joining us to translate legalese to English is Make Papantonio, host of “America’s Lawyer” here on RT America. Thanks for being here, Mike.
Mike Papantonio: Thank you.
Holland Cooke: Mike, in Harris County, Texas, a young mother was jailed for several days on $2500 bail after being arrested for driving on an invalid license on her way to pick up her daughter. My layman’s understanding of the 8th Amendment is that it prohibits excessive bail but there’s no inherent constitutional right for a defendant to be offered bail to begin with. Is that correct?
Mike Papantonio: That’s correct. It’s a balancing test, Holland. What it is is they use part of what we call the police powers, health, safety, and welfare, balanced against all the other rights. Most of the time, you’re going to find that notion of a court’s ability to always put health, safety, and welfare above issues like we’re talking about here on bail. Certain aspects of bail and criteria that can be used to set bail, there’s no question. But there’s no guarantee that any bail has to be set. That’s simply the law. The main reason that there’s no guarantee of bail is to prevent … the logical reason, the most violent criminals are people that are deemed to be flight risks from being released back into the general population. That’s the notion of why we have bail to begin with. But it doesn’t always work out quite like that.
Holland Cooke: I guess not. In reading up on this, I came across the Bail Reform Act of 1966, which requires courts to consider family and community ties, employment history, any record of previous court appearances, in deciding whether to detain defendants. But the ability to raise cash bail is still that fork in the road, isn’t it?
Mike Papantonio: Yeah. Cash bail, Holland, is really one of the biggest scams in our justice system. It forces individuals to immediately fork over cash or a credit card, in some instances, that they generally don’t have. So, it disproportionately affects people who don’t have access to money, the poorest of our society who are unable to pay. Meanwhile, there are plenty of other options available. Bail bonds or property bonds, even cite out, which allows an individual to get out of custody without having to pay bail. There are things like monitoring rings, there are a whole host of things that can be done. But study after study has shown that cash bail only ends up keeping individuals that are not a threat to society locked up, while the people that are more likely to commit another crime are able to go free.
Put it in this terms, you have somebody huge bringing in huge amounts of drugs across the country, usually has huge amounts of cash. It’s amazing, when you take a look at, for example, some of the worst gangs out on the street. They’re able to make cash bail because they actually put money back for that. But this person that you’re talking about, she has a driver’s infraction and has to stay in jail until somebody can kind of give her, come to help, which often does not happen at all. The effect is keeping more of our poor communities in jail, according to all available studies. That’s not just me talking. They’ve looked at this ad nauseam and they’ve concluded that really, the poorest of our society ends up in jail because they can’t raise that kind of money.
Holland Cooke: Well, jail isn’t free, number one. You also alluded to technology a minute ago. If former Trump campaign chairman Paul Manafort, who is now facing multiple counts of failing to report oversees cash flow, money laundering, and tax and bank fraud, if this guy can stride around with not one but two GPS ankle monitors, why can’t someone awaiting trial for a petty crime get an ankle monitor?
Mike Papantonio: Well, it has everything to do with a two-justice system. I mean, we sound like we wear that out when we talk about it, but it’s just absolutely the truth. You can go back, I’m working on one of the biggest cases in America right now, the opioid case, where we see that really, the people who made the decisions to get involved in legalized drug dealing should be at least in front of a judge somewhere and there should be some arrests made. But if the arrest is made, the chances of them actually spending any time in jail because they can’t make bail is non-existent. One of the systems is for the rich and the other is for the poor.
It isn’t just in the bail system. It also determines who gets prosecuted. Think about all the criminal bankers, as you point out, in this country who were allowed to avoid prison after they crashed our economy. I mean, the opioid case, they actually killed people, you understand, Holland. This was a legal cabal of people, of CEOs who made decisions to kill people through drug addiction. Now, that’s a far more serious problem than what we see people having to pay cash bails for. But for us to ignore the fact that there’s a two-party system is absurd. It’s there. I used to be a prosecutor. I saw it there. I now handle cases against the largest corporations in the world. I see it there.
There’s a fix. There’s the beginning of a fix that’s taking place and that has to do with a system where there’s at least a profile, it’s a suggested profile, that can be given to a judge. It’s a check system. Check these boxes and that’ll give you an idea whether you’re out of line with what you’re doing in bail. It’s something that we’re starting to see more and more. It’s a system that allows a judge who may not have a lot of experience-
Holland Cooke: Right.
Mike Papantonio: You know, a lot of these judges, they’re elected, they’re on the bench. They don’t have the kind of experience to be able to determine who really is a big risk to the public, who’s a safety risk, who’s a flight risk. So, they have technological systems that allow judges to make evaluations, and it’s just a beginning. It’s not, “This is the evaluation and you must do this.” It’s not a mandatory system. But we have to have some guidelines for these judges that a lot of times, they simply, they’re affected by all the things that people are affected by. They experience prejudice.
Holland Cooke: Sure.
Mike Papantonio: They experience favoritism. They experience racism.
Holland Cooke: Right.
Mike Papantonio: These judges are human, so you got to give them something to say, “At least this is the groundwork for how you ought to go about imposing bail.”
Holland Cooke: Right. Yeah, Mike, I got about 30 seconds, but you mentioned racism. The numbers don’t lie. Police are more likely to arrest people of color. Prosecutors are more likely to charge people of color. Judges are more likely to sentence people of color to jail. Because this risk assessment relies on prior criminal conduct to predict behavior, is racial bias baked into the process?
Mike Papantonio: Racial bias is always going to be baked into the process. You go back four decades, it was there. If you look ahead three decades, you’re still going to see it. I mean, it is the nature of our human makeup, unfortunately.
Holland Cooke: Right.
Mike Papantonio: If we believe judges are above that, we’re kidding ourselves. And prosecutors the same. Prosecutors are going to typically go after African-Americans or minorities before they do their neighbor.
Holland Cooke: The judge is only human. Thank you, Mike Papantonio, “America’s Lawyer” here on RT America.