Posting bail is un-American

In light of the recent study that finds that one half-million Americans are in jail simply because they did not have the money to post bail, I am re-posting this consideration of the un-democratic nature of bail, first posted here in August 2008:

One of the great founding principles of the United States is the right of equal opportunity. This means that no one is born with political advantages; for example, in a monarchic society, someone who is born into the nobility has political rights and protections from the law that “commoners” don’t have. Therefore, people outside the nobility do not have equal opportunity to succeed in their society.

In the U.S., equal opportunity has been popularly enshrined in the notion of every American having the chance to live the “American dream”: everyone has equal opportunity to work, vote, succeed, own a home, go to school, and more. Ideally, no American is barred from these things because of their social class, income, color, or anything else.

We of course fight a constant good fight to make sure this is true in America. There are always some people who want to set up barriers to equal opportunity. But we can never let this happen, for, as Alexis de Tocqueville, visiting America in the 1830s, later wrote in Democracy in America, equality of opportunity is the thing that truly sets America apart, the jewel of our democracy.

de Tocqueville was bothered, therefore, by one commonplace in the American system that he felt was a slap in the face to equality of opportunity. Was it slavery? Unequal wealth? City slums? No. While he saw those things were aberrations in our democracy, one thing he chose to comment on in particular was posting bail.

This seems like a very small thing. If you’re arrested, you can post bail to stay out of jail until your trial. That seems fair.

But it’s not fair, because it gives those who have money an advantage over those who don’t. If you’re not poor you can post bail; if you’re poor, you can’t. So poor people go to jail, while others don’t.

And if you are accused of a horrendous crime, like murder or child sexual assault, you have to post a much larger bail, maybe tens or even hundreds of thousands of dollars. This only guarantees that wealthy people will not be imprisoned while awaiting trial no matter what they are accused of.

Currently, this inequality of opportunity has come up in the context of immigration. If you are accused of being an illegal immigrant, you are most likely poor. Therefore, you can never post bail when you are arrested. And so you sit in jail until you are deported. Or, worse, you don’t even sit in jail, but are immediately put on a bus or a plane back to your native country.

This means your loved ones have no idea where you are. If you are never in a police station, you can’t make a phone call home to tell them. At least if you’re sitting in jail, your family knows what has happened. But illegal immigrants cannot post bail, and legal authorities know this, and so the whole process is skipped.

Even if an illegal immigrant is given a chance to post bail, everyone knows s/he will not be able to pay. Therefore, there is no real chance to protect oneself from immediate repatriation, no chance of having a trial.

One might argue that since illegal immigrants are not U.S. citizens, they cannot complain about not receiving due process. And one might feel that the problems of illegal immigrants are worlds away; U.S. citizens will never face this problem.

But you might. No one is guaranteed that they will never be arrested. Anything can happen. And if it does, will your wealth qualify you for justice, or will you sit in jail?