When Wealth Determines Culpability
by Vincent M. Southerland
September 30, 2020
This interview with Vincent M. Southerland, the inaugural Executive Director of the Center on Race, Inequality, and the Law at NYU Law, was conducted and condensed by franknews.
Vincent | I'm the executive director of the Center on Race, Inequality, and the Law at NYU School of Law. The center focuses on the past, present, and future of race and inequality in America. We look at how race taints the operation of the criminal legal system and, in turn, taints experiences and outcomes for people in that system. Our work is focused on policy advocacy, research, litigation, and public education; we both expose racial inequality in the criminal legal system and attempt to rectify it in some way.
Before I joined the center, I was a federal public defender. I worked at the NAACP legal defense fund where I handled death penalty cases and cases of youth sentenced to life without parole. I also worked as a state public defender. Most of my career has focused on issues of racial justice in the criminal legal system.
frank | A lot of your work centers around bail system reform. Why do you think it is important to focus on that part of the criminal justice system?
The bail system is a point in our criminal legal system where the harms of the system at large are made readily apparent.
The bail system punishes you based on your means and your identity. Wealth and race, rather than culpability, determines your treatment.
It ignores the presumption of innocence. It perpetuates mass incarceration. It is steeped in racial injustice. It is emblematic of a lot of the problems that we see in our system, and it is a place that is in dire need of reform and reimagination.
The harms of being held in pretrial detention are significant. It is hard for a lot of people to wrap their heads around the harm that comes from being plucked out of your life for a day or two. Imagine if you were stuck in jail for weeks or months on end, disconnected from employment, from health care, from your family, from your community, and from all the things that make your life vibrant. How would you go about resolving that if someone came to you and said, just plead guilty, and we will let you out of custody?
It demonstrates the inequities and harms that the criminal justice system imposes on people at a macro level. And to be clear, the pretrial justice system has operated as a coercive tool for decades — the cash bail system forces people to resolve cases by pleading guilty in instances where they otherwise might want to fight the allegations against them. And the connection between race and economic disadvantage adds a layer of injustice to the entire pretrial system.
Anecdotally, how have you seen how the bail system encourages people to plead guilty?
As a public defender, I've had countless cases where an individual was accused of a low-level offense and was essentially told that because of their prior criminal history, because of their personal history, because of barriers and hurdles that they had struggled with in their own lives, it was likely that bail or detention would be requested by a prosecutor, that a judge would likely agree with that request, and they would be required to post some amount of money to avoid pretrial detention. Their alternative was to plead guilty and be able to go home within a few days.
Faced with those options — knowing that you're stuck in jail, knowing you don't have family members who can post a couple of thousand dollars for you, knowing you can't afford to pay a bail bondsman to post bail for you, and knowing that you will potentially be sitting in jails for some indeterminate amount of time while waiting to get your day in court, it becomes very apparent to folks that the easiest and quickest way out of these situations is to plead guilty.
As a public defender, as the person defending them, what do you advocate for in that situation?
You have to strike a really careful balance. You don't want your clients to lie to the court. However, at the same time, you have to understand that people are in an incredibly difficult position, and they need to make the best choice for their lives under the circumstances.
The tradeoff has always troubled me. There were instances where I thought that there was a possibility that this person could fight the case and have a much different outcome, but I knew that fighting the case meant that they would be sitting in jail if they could not afford bail while waiting for that case to be resolved.
The system is designed to wear people down. Pretrial justice is one part of a criminal legal system that is rooted in the overarching project of controlling an entire class of individuals based on their race and their economic status.
It's not unusual or extraordinary that a system founded to control populations is still doing the same work generations after our country's founding. It was nevertheless disappointing and frustrating.
Do people take debt to be able to afford cash bail?
In a way. There are processing fees and extra costs associated with both the bail bondsmen and the courts. You can use a bail bondsman who you pay a percentage of the bail amount and they'll post the rest of the bond for you. Out of what you have given them, they take their own fees. And if you or a family member post bail yourself, the court system also holds onto some percent of that money.
The real challenge with cash bail is that most Americans don’t have enough savings to cover a $1,000 emergency. And the bail process itself poses a challenge. Even if you are able to come up with a couple of thousand dollars, that money belongs to the court until your case is resolved. It takes even more time after the resolution of the case to get that money back.
I'll just speak from my own experience. I had a family member who had to post bail, and his case took the better part of two years to be resolved. After that, it took us another three and a half months to get the money we had posted back. Imagine if you or your family is out of that money for all that time. That is money that can be used to buy food, buy medicine, or to support your kids. That is money that can be used to cover any number of critical expenses that are especially challenging to cover when people are living paycheck to paycheck.
People incur debt while the court system holds their money — that is part of the coercive operation of the cash bail system.
The idea of cash bail is rooted in the assumption that people will only show up to court if they have a financial incentive. Do you think that assumption holds?
The assumption that people will only come back to court if they have some financial skin in the game is one that is belied by the experience of the vast majority of people in the criminal legal system.
The idea that you need to hold some financial incentive over someone's head to ensure that they're going to come back is one that, at its core, just doesn't hold up when you look at the data.
In my experience of representing people accused of crimes, they want to live up to their obligations to the court. They want to come back to court and resolve their criminal cases.
And the instrument we are using to ensure appearance — cash bail — is divorced from reality. Because of bias in policing and enforcement patterns, most people who are arrested in misdemeanor cases are not folks of significant means. They are often living at the margins. They are not going to be able to flee a jurisdiction or flee the country. We are talking about people who are living paycheck to paycheck. The reality is that people come to court, and people come back to court, in overwhelming numbers.
If that premise is false, are there other ways that we should be looking at the bail system?
I'm on the board of the Bail Project, which is a national organization that pays bail for people — the goal is to restore meaning to the presumption of innocence and to reinvigorate our pretrial system with some semblance of justice.
The work of the Bail Project has demonstrated that pretrial release with support is what people need. In about 20 jurisdictions across the country, the Bail Project serves as a bail fund for individuals who are accused of crimes — individuals who are facing the possibility that they may join the over half million people who are stuck in jail because they can’t afford to post bail.
Working with local public defenders and community-based organizations, the Bail Project’s bail disruptors post bail for the accused at no cost to them, and provide supportive services like court reminders, rides to court, and other assistance to ensure that they can get back and forth to court. They make sure clients are able to successfully resolve their cases by providing the support that people need in order to abide by whatever conditions of release the court has placed on them. At the end of the case, the bail posted is returned to the Bail Project to be used again for future clients.
We've seen overwhelming success in people coming back to court. And again, these individuals are not posting their own money. They don't have any financial incentive to return, and yet even in those circumstances, they come back to court, repeatedly and successfully. This idea that we need to impose a financial condition on folks has been debunked by the work that bail funds across the country are doing and by the experiences of people every day.
If we're going to have a bail system at all, I think we should release the vast majority of people, presumptively, and provide people with the support that they need to be successful.
If there is a concern that an individual may pose a flight risk or a threat to public safety — the two things that state bail statutes most often require judges to consider — then we should have a robust hearing that requires the prosecutor to demonstrate why that person should be detained. There are reforms that we can look to, rather than using the blunt instrument of imposing unaffordable cash bail on preemptively detained individuals.