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Uniquely American Justice
New York Times national legal correspondent Adam Liptak, named last month to replace Linda Greenhouse (who shocked folks at the Harvard Crimson when she accepted a buyout after covering the Supreme Court for 30 years), was interviewed last week by Dave Davies for Fresh Air.
They spoke about Liptak’s American Exception series. The United States, with less than five percent of the world’s population, has almost a quarter of the world’s prisoners. That’s 2.3 million Americans. China has four times as many people as we do but comes in a distant second with 1.6 million people imprisoned.
Among the things that make us unique, the bail bondsman:
Mr. LIPTAK: What a bail bondsman does is, a private businessman is given the opportunity to get you out of jail in exchange for a nonrefundable fee, typically 10 percent of the amount the judge said. And that sounds great. So, you know, you don’t have the thousand dollars, but for $100 he’ll come up with bail for you and you’ll get out, pending trial.
But think about that for a second. You have someone who is presumed innocent, has not been convicted of anything, and we’re going to hold him unless he pays a nonrefundable fee to a private business. And we outsource to this private businessman both the question of should someone presumed innocent get out or not, and then allow him to make a profit on that person’s freedom. And many, many people, although initially charged, are ultimately not convicted. So we not only have someone presumed innocent but someone adjudicated innocent, and nonetheless we’ve made that person pay a fee in order to retain their freedom.
DAVIES: And the reason the court system does it is that it appears to assure people are more likely to come back for trial. I mean, does it?
Mr. LIPTAK: The numbers suggest it, although it’s a little hard to control for it. Yes, it is true that bail bondsmen have an economic incentive to make sure that people show up for trial. They also have an economic incentive to choose only those people who are likely to show up for trial to begin with, so it’s not as though we live in a world of bounty hunters. Ninety-nine percent of people would show up regardless. But it is also true that the 1 percent who goes on the lam, bail bondsmen, because they’re on the hook for the whole amount, will aggressively try to get those people, probably more aggressively than systems in which the government handles this whole business.
DAVIES: And that’s where it gets weird. We’ve empowered private citizens to arm themselves and go after criminals and lock them up. I mean, what powers to they have? Can they handcuff somebody to a hotel bed and transport them across state lines, things like that?
Mr. LIPTAK: It’s extraordinary. They can cross state lines. They can bust down the door of a private house. They can imprison that person. The theory behind it is that if you enter into this bail bond relationship with somebody and you sign a contract, you are their prisoners and they can on a whim revoke your bail at any time, snatch you up and take you back. This truly is a sort of frontier, Wild West legacy of Americana that is retained in almost every state still.
DAVIES: Well, OK, so how do other countries handle this, and are they less likely to get defendants back for court appearances?
Mr. LIPTAK: They handle it in lots of ways. Some countries don’t let you out. They lock you up pre-trial. Some countries let you out, but they make it a crime for you not to come back. So they’ll prosecute you for that second crime. Some countries will take a deposit from you and give it back to you if you show up. Some countries will write down a number on a piece of paper, and if you don’t show up they’ll make you liable for it and they’ll try to collect it from you later. So there are lots and lots of different ways to do it; but except for the Philippines, the US is the only one that turns it into a commercial business.
The U.S. not only locks up the most people, we are the most punitive — Liptak explains that we are the only country in the world that elects our judges so we get a “tough, tough, tough on criminals…feedback loop” — and we spend next to nothing on education and rehabilitation services:
The model elsewhere in the world–and, you know, it’s hard to say that every place else is–I mean, there are variations all around the world–but the model elsewhere in the world is to try to figure out a way to bring people back into society, not to sort of cut them off forever. In the US–and people think that there is a dividing line. If you do something bad enough, we sort of cast you out from society forever. We keep you in prison for a long time and then we let you out, but you’re a convicted felon. You’ll find it very hard to get a job. There are places perhaps that you’re not allowed to live. There are states in which you’re not allowed to vote. We have a very binary idea of who’s a good person and who’s a bad one, and I think other parts of the world think that’s a more fluid thing.
DAVIES: Has it always been true that American prisons have completely neglected rehabilitation, or did we try and address this in past years?
Mr. LIPTAK: In the 1800s, our penitentiary system was the model of the world. People came here to visit. De Tocqueville came here to visit, to marvel at how we’d constructed a system in which people would be reformed and returned to society, and they would go back and write pamphlets and books about this fantastic American innovation of the penitentiary system, which was a model to the rest of the world. And we have gone from that to really the exact opposite. The rest of the world is no longer sending delegations to American prisons to learn how it might be done.
But the exception that I find hardest to accept is life without parole for kids under 18:
Mr. LIPTAK: We are literally alone in the world in doing this. No other nation in the world thinks it’s a good idea to send, say, a 13- or 14-year-old who, without question, did something horrible, away to prison for the rest of his or her life, without even the possibility of parole. The important point to pause on is that life sentences–although there, too, we are a very big user of life sentences but with the possibility of parole–is one kind of thing. The idea that you can make a decision about somebody who’s done something terrible at 13 or 14, that by the time they’re 40 or 50 or 60 they will remain beyond redemption, that there’s nothing they could say about themselves to anyone that would let you re-open the book and say, `You know what? Let’s take a fresh look. Maybe we let you out. Maybe we don’t. But at least we’ll listen to you.’ That notion is literally unique to the United States.
For more on that, I point you to the Frontline documentary, when kids get life. The full program is available to view online.
In my town there are six state prisons. That helps sharpen one’s focus!
I don’t see my argument as solely a humanitarian one, though it is that. I see my argument as pragmatic, both from a criminal justice perspective and an economic perspective.
We are making criminals when we put people (mainly men) in the prison system. Either we put them there for life, or they come out equipped to do one thing and one thing only: commit more crime and go back.
Then there’s the cost. How do we pay? We keep extending sentences, mandatory minimums, no parole… while we cut budgets! The clear message: we’re not willing to spend more money on the criminal justice system.
It seems a far better investment would be to make them to the fullest extent possible–and I am aware of the limitations–fully functioning, productive, contributing members of the community.
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11 Responses to “Uniquely American Justice”
Added to this is the increasing privatization of the prison system.
A for-profit model minimizes whar little effort there is at rehabilitation,i n many caes
These companies favor tougher and longer sentences, of course., and they make their preferences known. There's good money to be made from incarceration, as well as from merely acused.
Our justice system has too little justice and much too little foresight about the consequence.
it frustrates me to the point of anger, but anger is unpatriotic, we hear.
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And another couple of awful trends: minorities are much more likely to be arrested, convicted and sentenced harshly than are whites, and in many states, a convicted felon can no longer vote even after he has served his time. Apply that to the tens of thousands of people arrested for nonviolent, victimless drug possession and you have a powerful tool for disempowering them as voters. You simply offer them a plea bargain in which they plead guilty to a felony, with no jail time to serve, and bingo, you have a nonvoter for life. Despicable.
“Mr. LIPTAK: It’s extraordinary. They can cross state lines. They can bust down the door of a private house. They can imprison that person. The theory behind it is that if you enter into this bail bond relationship with somebody and you sign a contract, you are their prisoners and they can on a whim revoke your bail at any time, snatch you up and take you back. This truly is a sort of frontier, Wild West legacy of Americana that is retained in almost every state still.”
The inaccuracy of this statement as well as the slant put on the article makes it hard to give any credence the thoughts expressed. While there is the ability to do bail recovery in the Federal System there is nothing preventing, and indeed in most cases, State laws apply to such activities. There are no cross country trips, when you catch someone it's straight to jail or you go to jail for kidnapping. Also ignored is the fact that you can post bond with the court and bypass the bondsman at any time. You would then get all your money back. The bondsman is allowed to charge a fee for a service but no is forced to use that service.
The statement about felons voting, How many states don't allow felons to vote? None really. Every state has a method to recover your voting rights. Some it's automatic and some you have to apply, but in most once you are completely done with everything including fines and parole then at most there may be a set time and you can recover your voting rights. Most States, 85%, it's remarkably easy so this whine is unnecessary and dishonest. Delaware, Kentucky, maybe Wyoming are tough states if your a felon looking to vote. The rest not real bad and usually automatic. Yes there are places you can't live if you are a child molester, but if you pass a bad check it's really not a big issue. Will you have trouble finding a job? Maybe but doesn't someone who is trying to hire a person deserve to know a persons past? I can ask about where someone went to school but not if he ever committed an armed robbery? Right. 70 percent percent of all released prisoners will be rearrested within three years. Of state parolees, only 42 percent completed their parole terms without re offending, a rate that has remained constant for a decade — down from 70 percent in 1985. I'm also tired of hearing about drugs being a victimless crime. Ignoring direct convictions for drugs, 33 percent of state inmates reported being under the influence of drugs or alcohol when they committed their offense. 19 percent of state prisoners and 16 percent of federal prisoners committed their crimes in order to purchase drugs. Those stats tell me that it is no simple argument and those that try and portray it as such are dishonest.
EEllis,
It's impossible to tell what your point is on the topic, because you did not address it.
At issue is the fact that the 'innocent until proven guilty' principle is being replaced by profit making opportunities for bondsmen.
Posting one's own bail is an option open only to the well-to-do, just like hiring good legal counsel is also open only to the well-to-do.
The .equal. part of justice is systematically ttrampled throughout the justice system, from the moment someone comes under suspicion
The scope of voter disenfranchisement is probably greater than EEllis realizes. There are some links on the subject here, here, here, here and here
I had not thought about the bail bond industry as a part of what is being called the prison/industrial complex, but it should be a national concern. We have a major industry now buying votes in Congress to continually increase the percentage of our population we imprison, even though it is already higher by far than any other modern industrialized nation.
Run my point is when some tries to make a point or push and issue and they distort mislead or deceive then they loose my attention and I'm not liable to think much of their opinion. That we have bondsman isn't a negative, most countries your butt would stay in jail. How is giving someone the ability to leave bad? That someone who insures that people can get out and is able to make a living the problem?
Every state has a mechanism for returning voting rights. Lobby all you want I don't think there is much chance people are going to care that people in prison can't vote. I also think that it's reasonable to wait until the full sentence has been completed and that people show they want to be a part of the process. Georgia automatically restores voting rights after completion of sentence. And people think this is a bad thing? It's an absurd overdramatized issue. The cry of racism is always brought up. Of course no one points out that these types of laws existed before universal suffrage when blacks could not vote and have roots in English common law and even go back to roman times. We take away the rights of people in jail, but they should retain the right to vote and have a say in my life? My feeling it's very much a State issue. Those that live elsewhere who want to change things have my blessing, but I would not support a change in my State.
It is an interesting issue. Why is our incarceration rate so high? Lots of theories but that's all they are. We do have effective law enforcement and a low crime rate, many point to that saying that good enforcement puts and keeps criminals in prison thus giving us the low crime rate. Others say it's the war on drugs, half the people in prison are there for drug related offences, and that doesn't include those that committed offences to buy drugs are who were under the influence of drugs or alcohol.
I wonder how people feel about felons not being able to possess firearms? Is this an issue for anyone? How about serving on a jury? It's funny how people are really only concerned with politically correct rights isn't it?
EElis,
Your pushing your o/wn issues.
The topic here is something you skate around without ever addressing at all: the destruction of the 'innocent until proven guilty' basis of our judicial/criminal system
When profits become part of justice, the bailbondsmen, just like private prison enterprises, have a financial interest in promoting whatever it is in law that keeps their businesses going. It's evident how moneyed interests of all types can sway governmental decisions, (some of them the very ones you object to),. The result is that we are left with no principled sense of justice at all, only one of expediency and knee-jerk reactions.
That leads to policies that ocmpound the problem instead of seeking to reduce it.
If you want to go beyond that, then every factor would have to be discussed in its own right. There is no big umbrella fix available that can answer all crime related issues.
A first step would be to separate the merely accused from the convicted in discussions., which was the focus here.
A necessary second step would be to separate knee-jerk reactions (lock 'em up and throw away the keys) from methods that reduce crime rates and improve the general health of society. in the long term.
There are some very interesting pilot programs with a long term view that show promise. Even at the early trial stage, some prove to be much more effective in reducintg recidivism than what is generally the practice. and experience. They are also more cost efficient.
I don,t think we can dissuss drugs, gun laws, or specific other crimes in a detailed way within the scope of this post. Even though I agree that it's an interesitng otpic, (I would say it's urgent), it's just too broad to go beyond general principles. – at least it is for me.
“the destruction of the 'innocent until proven guilty' basis of our judicial/criminal system”
And what if anything posted has anything to do with that? It hasn't gotten more difficult to get out while awaiting trial. Nowhere have I seen anything posted about any lessening of rights. Bondsman and “bounty hunters” have been increasingly regulated not the opposite which belies the point that Run seems to think was being made. No indication that privatizing prisons in any way contributes to the number of people incarcerated. It just sounds like it's something that some only want the Govt and it's employees to profit from. Sounds like a knee jerk reaction to me, I guess it's just a different knee.
The Bondsman is a simple and useful part of the system. Most people cannot afford to post a big enough bond to satisfy the court unless they financially hurt themselves. This enables them to do so and for the risk of standing surety a bondsman charges a fee. So? I still don't see the problem with it and, innuendo aside, I haven't heard anything to point out any specific issue. Regulating can protect defendants because it would happen anyway just unofficial and unregulated.
And Run for the record my main view is I hate when people use crap examples and distort reality to try and prove a point. The remainder was in response to others posts so I don't consider them “my” issues.
Our greatest right or power in america is jury duty if we believe the system is wrong or misused we simply vote not guilty to prove a point that we are tired of the system and are demanding a change. O.J. took advantage of this via jury selection and so do the well to do attorneys etc… Its time to stand up and voice your oppinion…