Cash Bail

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

8th Amendment to the Constitution of the United States of America

What is excessive bail?

For the quick, lazy definition of cash bail, we can resort to Wikipedia: 

Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they comply with the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.

In some countries, especially the United States, bail usually implies a bail bond. This is money or some form of property that is deposited to the court by the suspect, in return for the release from pre-trial detention. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime of failure to appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded.

Scott Hechinger, senior staff attorney and director of policy at Brooklyn Defender Services, recently tweeted some statistics about cash bail. I'll summarize his statistics, but the thread is worth a read.

• A judge spends about one minute, on average, deciding to detain people pretrial on bail
• 87% of Brooklyn Public Defender clients cannot afford their bail
• 500,000 - or about ¼ of the 2.3 million people currently incarcerated - are only incarcerated because they cannot afford their bail
• 95% of clients return to court without any financial incentive
• 95% of all convictions are from plea deals
• Someone in jail is 9 times more likely to plead guilty than someone who can post bail

According to the definition of bail, it's supposed to be used to ensure the defendant's return to court. But what is actually happening is that bail is being used to coerce guilty pleas. The median income in the United States in 2015 was $56,516; according to Prison Policy the median income of a person incarcerated without bail $15,109 (before incarceration.) The average bail amount for felony cases  was $55,400; data is scarce for misdemeanor cases, but Human Rights Watch found that in the 23% of cases where defendants were required to post bail in New York City, 72.3% of them were set at $1000 or less. However, “Despite [this] relatively low bail amount, the overwhelming preponderance of defendants required to post that bail amount were jailed because they could not do so.”

The disparity faced by the poor is huge. A wealthy person accused of a crime can easily pay any amount set; most of the people who are incarcerated in jails, however, are poor - they can't hope to pay the bail amount.

So they sit in jail, waiting for their hearings. While they sit in jail, they lose their jobs, their housing, their vehicles. Because of these pressures, they will often plead guilty simply to get out of jail - the sentence of probation or time served, even with a criminal conviction, is easier to bear than the weeks or months incarcerated.

Bail is being used as a punishment, or as an incentive to plead guilty. This is not how bail was intended to be used. It's not how it's been used historically, either- an article for the Harvard Law Review, citing a Vera Institute study, states that only a generation ago, most people charged with a felony were released on recognizance.

A person with a set bail has already been determined to not be a threat to the community or a flight risk by a judge. The only thing keeping them incarcerated is simply a lack of money to pay bail. And requiring people who have not been found guilty of a crime to pay for their freedom is not justice.

What, then, should we do with the cash bail system? Should it be abolished? Some states are attempting this, and it is already drawing criticisms from organizations pointing out that without a cash bail option, judges are defaulting to simply holding people with no bail at all. This is accomplishing the opposite of what it was intended to do.

And so I do not argue that cash bail should be eliminated, because the financial incentive to return to court is not, on its face, unjust. It is the setting of amounts which most people cannot ever hope to pay which is unjust.

Any cash bail which exceeds the defendant's ability to pay is excessive.

Private Prisons

In 2013, there were 133,000 prisoners housed in private prisons in the US - 19.1% of all federal prisoners, and 6.8 percent of all state prisoners. Most are housed in facilities owned by three companies: CoreCivic (formerly Corrections Corporation of America), GEO Group (formerly Wackenhut,) and Management and Training Corporation. Together these, three companies spent over 1.6 million dollars in lobbying in fiscal year 2017-2018 - with GEO Group spending nearly one million by itself.

Private prisons have been vilified by many for their tendency to hire under-trained staff, deny medical treatment, fail to implement effective security measures (leading to escapes and violence,) and much more. All of this is available to the discerning reader with access to any one of several popular Internet search engines, so I will not repeat them here, with one exception: Here's a link to reporter Shane Bauer's article about his four months undercover working at a private prison in Louisiana. 

Another popular criticism of private prisons is the belief that they have somehow caused the current over-incarceration culture of America. Robby Suave addresses this much better than I can, in this article for Reason, but his basic argument (copy & pasted directly from his subtitle) is that private prisons are a symptom. Mass incarceration is the disease - one that, suggests Robert Pfaff, has surprisingly little to do with the War on Drugs, and lot more to do with prosecutorial power creep, as described in this article in The New Yorker.

But do private prisons actually save any money? That's the standard justification for privatization - the private company can do it for less. What about quality? Do private prisons do a better job of being prisons (whatever that means?) Do they, for example, have less recidivism than public prisons? The answer, according to Sasha Volokh for the Washington Post, is a resounding "maybe." There simply aren't enough good studies, and the ones that do exist often contradict each other. We simply don't know if private prisons are any better or worse than public prisons at any metric, except health care, which is so bad at private prisons that Arizona simply won't send prisoners with known health problems to any private prison.

Libertarians, with our inherent distrust of all things government, often cheerlead privatization of traditionally government institutions. Government, not being responsive to market forces, is almost always more inefficient and wasteful, and provides lower quality service, than a private company which has to compete for customers with other private companies.

But that last bit is the key. The private company isn't more efficient by virtue of not being government controlled; it is more efficient because if it is not, it will lose market share to its competition, as dissatisfied customers take their business - and their money - elsewhere.

The current private prison model has, for its customers, the government. And so every failing of a government-run operation will be transferred to the private operation, because while in both cases the government is paying for the service, it is not subject to any dissatisfaction that may result from bad service. It is not your Senator whose fingers and toes will be amputated from gangrene because his diabetes was untreated; it is not your Representative who will miscarry on a dirty floor, her cries for help ignored because the facility isn't equipped to deal with pregnancies, who will later discover that the body of her child was discarded with the dirty linen; your Assemblyman need have no fear of being abandoned in a cell with a violent rapist to be attacked for hours, his screams unheard and all emergency call buttons disabled.

To be sure, these problems are not exclusive to private prisons. In fact, I have given three true stories, one of which I head first hand from a witness - the first from a private prison, the second from a county jail, the third from a state prison.

But for Libertarians whose first instinct is that privatization is the cure for all ills, consider that the private prison is still a monopoly operated by charter from the government. They are private in name only, as there can be no competition - just as with any other government monopoly. (Don't believe me? Fine. Start your own private prison and start locking up criminals without that government contract and see just how far you get.)

So should Libertarians support private prisons? By all indications they aren't really that private - they benefit from not being subject to open records laws (part of the reason we don't really know if they're more violent or have more complaints,) and while those in public prisons are subject to an often obscure and seemingly arbitrary grievance procedure, those in private prisons often have no recourse at all except a lawsuit - which a typical prisoner can't hope to pay for. They are held to a lower standard than federal or most state prisons, they have little to no accountability or transparency, and there is no way for those affected by their service to refuse it.

For these reasons, I reject the current private prison model as widely practiced in the United States, and I urge all other Libertarians to reject it as well.

But does that mean that the concept of a privatized prison, in general, is inherently bad? I don't think so. A business will naturally operate in such a way as to optimize their earnings and minimize their costs. While our current model bases earnings on the number of prisoners held, and considers everything else to be a cost, it doesn't have to be that way.

Profit motive is, however, a powerful tool. It is neither good nor evil, but can be used to good or evil ends. What if we could incentivize rehabilitation, instead of recidivism? Remember that the goal of a system of justice is to protect the life, liberty, and property of the people - including the people in the system. What if we can make a profit, not from locking more people in cages, but by reducing crime?

Consider a private prison whose earnings are based on lowering recidivism. As released prisoners stay out of trouble, the prison receives payments. They do not receive these payments when prisoners reoffend. The company will seek to optimize their earnings: They will look for the most cost-effective tools that can be proven to reduce recidivism. (Compare this to current rehabilitation programs, which (from the point of view of someone who's participated in them) are designed to receive government grants and sound good as a doctoral dissertation. Programs are created, used for a few years, discarded, with little to no tracking information about their effectiveness.) 

Is such a thing even possible?

Yes it is.

First Principles of Justice

What is justice?

This question is important, because the goal of a system of justice is dependent on what we mean when we say "justice." Do we mean punishment? Vengeance? If so, then the current American system of justice is perfectly fine, and nothing I have to say here is of any value whatsoever.

I don't think that's true, though. I think that justice (defined as "morally right and fair behavior or treatment") often has very little to do with the system of criminal courts and incarceration in the United States. As Libertarians, we already have a standard for "morally right and fair:" Don't hurt people. Don't take their stuff. A just system, then, would be one which protects people from being hurt and having their stuff taken.

This can be accomplished by putting everyone in a bubble suit in a locked room. Now they're safe!

Obviously that's not the goal. A system which limits the liberty of the people whose liberty it is meant to protect is not a very well-designed system. What, then, should this system do, to protect the life, liberty, and property of the people? 

There are five recognized purposes of a system of criminal punishment: Deterrence, retribution,  rehabilitation, incapacitation, and restitution. Let's examine them each in turn.

Deterrence is the idea that by imposing harsh penalties for crime, potential criminals will be dissuaded from  committing crimes for fear of the punishment this will incur. This is a popular refrain among conservatives who favor harsher sentences. However, there is one glaring problem with this theory: It doesn't work. Even the government admits this; the National Institute for Justice, the research branch of the Department of Justice, points out that prison sentences, harsher penalties, and even the risk of execution do not deter crime. Criminals don't often weigh the possible punishments should they be caught; instead, they weigh how likely they are to be caught. The only effective deterrence is a visible police presence that affects this perception. To impose cruel and unusual punishments in the hope - especially the vain hope - that it will somehow dissuade others from criminal acts seems to me to be completely unrelated to the idea of justice.

Retribution is the familiar "eye for an eye, tooth for a tooth" Old Testament theory of justice. A thief must be stolen from; a murderer must be murdered; a rapist must be raped. The object is to expiate the guilt of the offender by imposing on them the same suffering they imposed on their victim. There is one immediate objection I have to this idea; it is that harming someone does nothing to make whole the harm that another has suffered. To libertarians, who hold that force must only be used in defense, the idea of intentionally using force in this manner must be particularly onerous, in the same manner as torture. In preventing harm, one may use as much force as is required; this is defense. To use force afterwards, because of anger, is not defense.

Rehabilitation is the idea that offenders can be induced to change their behavior through various methods. There is one notable difference between rehabilitative punishment and deterrent or retributive punishment: It can be proven to work. In fact, the components of successful rehabilitation programs can be measured, and the results used to improve future iterations. Rehabilitation is effective at reducing recidivism. However, there is a flaw in a system which focuses solely on rehabilitation: The system cannot rehabilitate an offender who does not wish to be rehabilitated. And so a rehabilitation-focused system of punishment must either release unrehabilitated offenders when their sentence has expired, or detain them indefinitely until it is satisfied that they have been rehabilitated. We can see the results of the second in California with indefinite civil commitment, a system in which offenders who have completed their sentence are simply moved to another facility from which they are never released.

Incapacitation is the idea that repeat offenders should be incarcerated for long periods of time in order to prevent them from offending again. On its face, it seems like a great idea - we'll be removing career offenders from the public, which will reduce crime! In action, what happens is varying definitions of  "repeat offenders" - such as the notorious three-strikes law, which can impose life sentences for nonviolent or low-level crimes. 

Restitution is related to the Biblical concept of retribution, with one important difference: In retribution, both the victim and the offender are harmed. In restitution, the offender makes whole the victim. This satisfies pretty much every definition of justice, and is, in my opinion, the best option when it is feasable.

But what about when it isn't? What if the offender cannot afford restitution? What if the victim cannot be made whole, as in cases of rape, murder, or grievous assault?

That is where we must look to the other four methods. The first two I reject out of hand; deterrence because it is ineffective, and retribution because it violates the liberty principle to use force only in defense. Rehabilitation is possible for those who are willing to change their behavior, but there will always be those who refuse, who perhaps do not even admit that their actions are harmful. Incapacitation works only insofar as the person who harms another must be prevented from doing so again, and not as a predictor of future harm - there are too many people incarcerated right now for repeated crimes of poverty under this idea.

When we list the basic human rights of life, liberty, and property, we list them in this order not only in mere imitation of Thomas Jefferson, but because this is the order in which we value them. And when a person must be deprived of their rights in order to protect the rights of another, this order again comes into play; we do not deprive an individual of his life because he deprived someone of their property. Theft is not a capital crime. And so we should apply this same hierarchy to the theory of criminal justice.

An offender who violates a person's right to property may rightly be liable to have his own right to property curtailed to make whole the victim: a thief may be required to repay what he has stolen. This is restitution, and it should be the default response to nearly all property crime.

An offender who violates a person's right to liberty or who threatens their life may rightly have their own liberty curtailed to prevent them from victimizing another: kidnappers, rapists, violent assaulters, and murderers may be incarcerated to prevent them from harming people. In these cases, often no restitution is possible.

However, the purpose of the incarceration should not be retribution. It should not be deterrence. It should be to prevent the offender from harming others. To this end, the offender should be incarcerated only so long as they are a risk to the public. The violent young man who "ages out" of his tendency for violence after the age of 25, the old man who is crippled and no longer capable of it - neither of these should be incarcerated.

To incarcerate someone who poses no threat to the public is not justice or liberty. Only those who can be proven a threat should be incarcerated. This is the purpose of the sentencing phase of the criminal trial; after guilt or innocence has been determined, the proper treatment should be determined. Too often the sentencing phase is merely a formality, where a prosecutor argues for longer sentences and the defense argues for shorter sentences, which are imposed by a judge with little to no regard for the actual safety of the public, but rather to sate their desire for vengeance. And that is injustice.

First Principles of Liberty

Let's begin from first principles.

Every person has the absolute right to their own body; you own yourself. No one else has the right to own you. This is the right of self-ownership, and it is the basis of all human rights. Thomas Jefferson says we have the right to life. If others own us, if others have the power of life and death over us, we are denied our right to self-ownership.

Since I own my body, I have the right to decide what to do with it. It's mine. No one else has the right to do so without my consent. This is the right of self-determination. Thomas Jefferson says we have the right to liberty. If others have the power to control our actions, we are denied our right to self-determination.

Since I own my body and am the sole determiner of its actions, I also own the product of my labor. No one else has the right to demand labor from me. This is the right to property, which Jefferson replaced with the right to pursue happiness, because he didn't want slave owners thinking they had a right to own people. (Of course, Jefferson was a slave owner himself, and didn't do a very good job of living up to the ideals he wrote down. They're still good ideals.) If others have the power to confiscate our belongings, we are denied our right to property.

So every person has these rights, inherently. Inherent means existing in something as a permanent, essential, or characteristic attribute. One cannot separate these rights from a person, because these rights are part of person-hood. To deny these rights is to deny basic humanity.

Because these rights are inherent in all persons, they cannot be granted by the state. They may be recognized and enumerated for protection by a benevolent state, they may be ignored and infringed by tyrannical dictators, but they exist independent of the state.

The only restriction on the exercise of your rights is that you do not infringe on the rights of others. You may not kill or harm people, because this violates their right to life. You may not enslave people, because this violates their right to liberty. And you may not steal from people, because this violates their right to property.

From this, we derive the non-aggression principle, which succintly states that no person may initiate force against another person.

This, then, is the only crime: to initiate force against another person, depriving them of life, liberty, or property.

A government exists to use force. It funds itself through force. If its power expands beyond using that force to protect the rights of the people, it must be checked. And if it uses its power to deprive the people of life, liberty, and property, then it is no longer fulfilling the legitimate role of a government, but rather that of a criminal cartel.

There is one instance in which the state may exercise its power to limit the rights of people, and that is when those people are using force to infringe the rights of others. This is the putative purpose of the criminal justice system, and it is my intention to examine the United States criminal justice system from the paradigm of liberty described above, and to offer concrete policy solutions from the perspective of a formerly incarcerated person.