Picture a 20-year-old college student from Wilmette, Naperville, or wherever, and they get pulled over and arrested for driving on a revoked license. They themselves aren’t rich but they have rich parents who can hire a good attorney and pay the $1,000 or $2,500 that the Judge asks for bail. Eventually, the case works its way through the system and the attorney his parents hire gets the case dismissed or knocked down to a smaller charge with a fine and no jail time.
Now imagine someone who lives paycheck to paycheck and doesn’t have parents to bail them out of a tough situation. They only drive because they have to get to work, and they too get pulled over and arrested. Bail is set at $2,500 which is money they don’t have. In fact, nobody they know has that. So they spend six months in jail and eventually plead guilty with time served as the punishment. Of course, now they’ve lost their job, their apartment, and their car has been impounded and taken away.
A version of this story happens all of the time. We essentially, in Illinois and in the United States in general, decide who will spend time locked in a cage before trial and who will be home with their family based on how much money they have or can get access to. After 25 years of being an attorney, it’s still the most shocking and upsetting part of my job.
Bail is punitive. People think it’s designed to protect the public and guarantee the alleged offender will show up to court. But what about having more cash than someone else makes the public safer? Of course not. We criminalize poverty in this country.
This is why I have been a big proponent of bail reform laws. If someone is charged with a violent felony and could be an actual danger, then detention makes sense. If someone is a true flight risk, then a cash bail with ankle monitoring might make sense. But for most of the general public, bail is punitive and unjust.
In many cases, a family will struggle to raise $5,000 or so in order for a loved one to get out of jail. By doing that, they no longer have the money to pay for a lawyer or at least not a good one. So again, the lack of true justice continues. It’s simply wrong to get a different result in a case based on your income.
Financial inequity happens all over the law, especially in cases like divorce or general civil litigation where you have to pay an attorney by the hour. There is, sadly, no good solution to that problem beyond the State funding attorneys for people who are below a certain income level.
But in criminal cases, we know that this problem exists and we continue to let it happen. And it happens even though there are logical solutions that, while they won’t completely make things equitable, they will reduce the imbalance of outcomes between rich and poor. So when you see someone running for office as “tough on crime,” it might sound good or make you feel safe. But the reality is that the way it’s done is unjust and ends up leading to more problems than it’s worth in most cases.