And what is the alternative to a cash bail system? It’s pretty simple: Abolish it. Divorce the payment of money from deciding whom to hold in jail and whom to release. In a no-cash-bail system, judges hold people charged with crimes in custody or release them from custody based primarily on the danger their release presents to the community. In the District of Columbia, there has been a statute for thirty years that forbids judges from using any amount of money in setting bail. In D.C., about 12 percent of all criminal defendants are held in custody until trial because they are viewed as presenting too much risk on the streets pre-trial. On truly serious cases, where the defendant poses a danger to the community, billionaire defendants sit in jail just like anybody else pre-trial. No amount of money can buy their way out. And, in D.C., about 88 percent of all criminal defendants are released without having to pay any money, although they may be required to report for some type of services or monitoring. For example, a homeless defendant won’t pay money but may have to report to a homeless services center once a week—call it sweat bail.
One of the greatest virtues of a modern, no-cash-bail system like D.C.’s is that immediately after arrest it allows the system to address underlying issues for which the criminal charges are just one symptom. For example, a person suffering from addiction or mental illness can be released and required to seek treatment services right away as a condition of their freedom before trial. In a traditional cash bail system, it’s all about the money, with no or minimal services available before trial—any mental health or addiction services show up only after conviction and sentencing, as a condition of parole or probation. The early treatment and support available to people who are released in a modern no-cash-bail system have another great outcome in fighting mass incarceration and improving justice.
In a no-cash-bail system, unnecessary convictions for non-serious offenses are easier to avoid. Defendants who comply with their conditions of pre-trial release by going to drug or mental health treatment before trial, for example, are proving they will be compliant with post-trial rehabilitation, which makes them good candidates for diversion rather than conviction and other forms of accountability that do not require convictions and prison sentences. Prosecutors who are deciding whether or not to offer diversion rather than go to trial have reliable information on who may do well with diversion. Root causes that may have led to the arrest are addressed earlier. Individual justice is served by its elimination, but cash bail is only one of the drivers of mass incarceration.
Sentencing guidelines and their slightly more evil cousin, mandatory minimum sentencing, are another cause of mass incarceration. Sentencing guidelines and mandatory minimums boil every individual situation down to numbers. Sentencing guidelines are a range of numbers judges choose from in sentencing defendants, such as 24–30 (meaning twenty-four to thirty months of custody) for a certain class of cases. Mandatory sentencing differs in that it is an absolute floor below which a judge has no power to go—for example, life without possibility of parole is a mandatory sentence in Pennsylvania that gives judges no choice in certain cases, regardless of the facts and equities.
With sentencing guidelines, the sentencing range usually depends on two factors: the supposed seriousness of the offense (reflected in a point system) and the defendant’s prior record (reflected in another point system). The two point systems become the axes of a table that presumes to reduce the intense complexity of all types of criminal conduct and life history to reductivist simplicity. In the worst jurisdictions, judges have no choice but to rigidly follow sentencing guidelines. In slightly better jurisdictions, judges have some discretion if they overcome a variety of challenges and are able to show that the case or the defendant is special and somehow different from what the guidelines cover. And in some jurisdictions that are less benighted, the sentencing guidelines actually adhere to the definition of the word “guidelines”: They are ranges to be considered by judges, but they do not prevent the judge’s exercise of discretion in deciding what sentence to give in a particular case.
For example, someone convicted in Pennsylvania with an assault for a bar fight who had a minor prior criminal record may face a sentencing guidelines range that suggests a sentence of anything from probation to several months in county custody if the victim’s injuries are not too bad. But if the same punch by the defendant causes slightly more serious injury, the sentencing guidelines may suggest a much longer and more life-altering sentence, between two and four years in state custody—the kind of sentence that can wreck family bonds and steady employment permanently, two factors known to prevent future crime and encourage rehabilitation.
In most jurisdictions, the chart of sentencing guidelines can fit on a single page. Simplicity is supposed to be part of the point. After all, the criminal system is built on the myth that people are all good or bad and don’t really change. But the definitions and point systems laid out in the manuals that come with the chart are not simple and consume tremendous time at sentencing, and afterward on appeal. Most sentencing guidelines manuals betray their control-freak authors’ fevered, predictive dream of all the characteristics of every crime, every prosecution, and every defendant in the future. The deceptive impression created by these hefty books full of definitions and complex number systems is that they reflect something of substance, something written after years of criminological research and based on data, tested and scientific. They don’t.
They represent someone’s or some group of legislators’ gut feeling or political scheming on what sentences should be for certain crimes and certain defendants. Far too often, those legislators have no experience in criminal justice and their positions reflect whatever they think will get them reelected, which historically has been a draconian approach to sentencing. Even when the sentencing guidelines are written by people with experience in criminal justice, they nearly always reflect the philosophy of criminal justice’s old-guard power players: traditional prosecutors.
Pennsylvania’s sentencing guidelines scheme, for example, dates from the 1980s, a time when there were zero progressive chief prosecutors in Pennsylvania. At first, Pennsylvania’s sentencing guidelines were nothing more than an averaging of what sentences were already being given for similar crimes and defendants across Pennsylvania’s sixty-seven wildly different counties. In theory, the purpose was consistency across different jurisdictions and among different judges that limited judicial discretion. But consistency alone is not justice, and consistency codified in excessively lengthy guidelines is terribly unjust when it forces judges to impose consistently excessive sentences. Individual justice is justice’s goal, even when it appears or occasionally results in outcomes that are somewhat inconsistent. And consistency can be dangerous when less populated rural, suburban, and exurban counties set the sentencing guidelines for what densely populated urban counties’ judges should do with crimes seldom faced outside of cities. It’s a real culture clash, an invasion of cities’ authority to handle their own criminal matters and higher levels of crime in the ways city judges believe will work. Some states’ sentencing guidelines updates have added complexity and some nuance, but remain orchestrated by politicians and their traditional prosecutor cronies who view too much sentencing as not being enough.
Mandatory sentencing schemes don’t require a fat book of rules because they are even simpler than sentencing guidelines schemes, which is the only good thing I can say about them. And they are even more problematic for justice, completely stripping judges of their ability to give a sentence below a certain floor when the specifics of the case call for it, even when the result is unjust. A defense lawyer’s logical arguments and silver tongue don’t matter anymore, either. That stolen judicial power finds a new home in the toolboxes of traditional prosecutors, who are the only ones empowered to undo a mandatory sentence where that is even possible. With mandatory minimum sentencing laws, prosecutors hold nearly all the power. And prosecutors are able to use
that power to get defendants, through their beleaguered counsel, to do exactly what they require. Often that means prosecutors are able to coerce defendants into pleading guilty rather than trying their case and accepting whatever negotiated sentence the prosecutor feels like offering. Any mutiny by the judge or defense counsel against the prosecutor’s use of the mandatory sentencing law is futile. The prosecutor can always revive the mandatory minimum sentence. Judges frequently impose mandatory minimum sentences while commenting that they disagree with them or view the mandatory minimum as an example of the legislature “going haywire,” but have no choice but to impose it.
Every now and then, even prosecutors are offended by mandatory sentences and have to find creative ways around them, as I experienced once representing a man named Juan Ramirez on drug charges in federal court. He was facing life without the possibility of parole due to a combination of the weight of drugs involved and his two prior drug convictions. He had no real record for violence or guns and was one of a few dozen defendants in a large drug conspiracy where he was a mid- or low-level participant. Had this been his first offense, the mandatory minimum he would have faced was ten years.
Juan Ramirez grew up impoverished in Puerto Rico. He told me he remembered sitting on a bar stool as a young child next to his mother, who would periodically disappear into the back with male customers for money. His parents would binge on drugs and stopped feeding him and his younger sisters for days at a time. By age ten, Juan was washing cars in a cemetery for money and dealing dime bags of drugs to users so he could feed himself and his younger sisters. When he came home with money for food, especially after his parents’ benefits checks were exhausted later in the month, his mother would assault him to steal the money so she could buy drugs, sometimes biting him in the process. When he switched to buying food before he got home, she would beat him or try to sell the food for drug money. He always persisted, supporting his sisters even after both parents died of AIDS while he was a teen.
I got his case a few months after he was arrested and indicted, unusually late in the process. Juan spoke little English and his prior attorney spoke no Spanish. The lawyer was a bum who apparently made no real effort to help him before being replaced by me. Helping Ramirez, in a federal case where the evidence was overwhelming and the likely sentence life, meant helping him to snitch—to provide truthful information to the feds that would aid them in prosecuting other people. If his information was truthful and successful, he could obtain a sentencing reduction to something far below a life sentence.
But it was too late for Ramirez to effectively snitch by the time I got the case. The feds already had all the evidence they needed. A couple dozen other defendants, many of them far more involved in the drug conspiracy than he, had already talked. Ramirez was truthful and he was willing to tell everything, but had nothing new to give. We tried snitching at a proffer, a meeting where Juan did what he was asked and truthfully told the prosecutor and federal agents everything he knew. I made sure Juan also told them everything about his background; the federal prosecutor got quiet but said he was unable to help. Juan had nothing new. The prosecutor said his supervisors had no choice but to disapprove a sentencing reduction. A life sentence was inevitable. We were all up against a bad system.
But the prosecutor, who had been in street law enforcement before law school, found a way to help out. The information Ramirez gave wasn’t new or necessary, but it was all true. But for the crap lawyer who ignored him for months due to a language barrier, Juan would have qualified for a sentencing reduction. So the prosecutor took bits and pieces of the information Juan provided in his proffer as additional, albeit cumulative, support for search warrants and arrest warrants he was already writing based on other defendants’ information, without any information from Ramirez. The prosecutor didn’t need Juan’s information to get the warrants, but he threw it in anyway. When the warrants were executed and produced evidence, the prosecutor told his supervisors that Juan’s information had been used. He was stretching to give Juan credit, and it worked. At sentencing, the prosecutor got Juan a ten-year sentence that the judge and I had absolutely no power to give. On his way out of the courtroom, the prosecutor gave me a toothy grin. We both knew the feds had come up with a system so ugly that even an ex–law enforcement officer turned federal prosecutor couldn’t stand it and stuck his neck out to get some justice.
Here is where the big view helps more than the details: How can sentencing guidelines and mandatory sentencing schemes be sound when their only fruit has been steady increases in mass incarceration in Pennsylvania, and in the United States? They can’t, which raises the question of why America continues to use them. Who benefits?
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The answer is politicians, elected officials, and the prison industry they made. More specifically, mandatory sentencing schemes and excessive sentencing guidelines are the legal framework of a profitable and political trade in human beings. In Pennsylvania—but also all around the country—public state prisons have been a major industry outside cities, especially in many rural counties. State prisons dot the state map, but none exist in Philadelphia. Of the roughly 50,000 Pennsylvania state prisoners in 2017, about 27 percent (over 13,000) were Philadelphia residents before being exported to other counties’ prisons, where they would be included in that county’s population for purposes of the census. Where these Philadelphians went and were counted in the census, tax funding followed that fed the local economies at approximately $50,000 or more per inmate per year. That’s a lot of money, especially in a broke county. The rough math on 13,000 Philadelphians locked up at fifty grand a year is $650 million spent all over Pennsylvania except in Philadelphia, the urban center where the vast majority of these men and women were born and nearly all resided prior to their incarceration. And with these other counties’ counting Philadelphians in their census, increased highway funding and gerrymandered political power have gone to the same counties by counting people who live locked up in prison cells, unable to drive or vote. No wonder, then, that with so many other Pennsylvania counties’ inflated payrolls and tax bases and fluffed-up political power dependent on locking up Philadelphians, the elected officials of an otherwise economically moribund county economy vigorously push mandatory minimum sentencing and sentencing guidelines laws that fill their prisons with Philadelphians who are disproportionately poor, Black, and brown.
Even after being released from custody, people who have been convicted of crimes face supervision on parole and probation that is no less troubling or massive. Mass supervision refers to mass incarceration’s counterpart, the even larger number of people who are living under the supervision of parole or probation officers. In the short run, supervision on probation or parole can be constructive. The science around it is clear: Three years or less of supervision on parole or probation is usually beneficial. More than three years of supervision generally just makes things worse. Not only does excessive supervision fail to improve things, but it actually causes people who have been convicted of a crime to fail. They often end up re-sentenced and back in custody when a judge decides the probationer or parolee has violated the terms and conditions of supervision. Those violations can be as insignificant as a probationer missing a monthly payment to fund his own supervision or missing a single appointment with a probation or parole officer.
Imagine the position of a landscaper on parole, holding a growling chain saw in both hands on a worksite. His decent boss hired him despite a criminal record. He has been a good worker for five years. He reunited with family, is a provider again, pays taxes, and has had no further involvement with crime since his conviction. He has made all of his biweekly probation appointments until the day his boss tells him he just can’t spare him this time—other workers out, a looming deadline, bad weather coming, and payroll due, including the paycheck of the parolee holding the chain saw. If the landscaper leaves work to go to his par
ole appointment that day, he’ll be fired. Keeping employed and paying monthly fees and costs are requirements of his supervision. Without a job, the parolee faces a supervision violation. If the landscaper skips his parole appointment, he faces a supervision violation for merely skipping the appointment. None of this would be happening if the landscaper’s supervision had ended at three years, but it didn’t. After five years of successful rehabilitation, two decent people—the parolee and his boss—are up against a bad system.
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Whatever choice he makes, the landscaper is likely to end up in front of the judge who sentenced him in the first place and his chain saw won’t be the only thing growling. He may face a weirdly parental dynamic, with the judge playing the angry parent role and a parole violation, a re-sentencing, and a return to incarceration coming next that will likely do far more harm than good for the future of a man who has profoundly changed. And if the landscaper is sent upstate, money and power will go with him. Someone or something’s interests will be served, but it won’t be justice and it won’t be ours. There is no binary world divided between saints and monsters. Stereotypes always fail us; each person is unique; truth is individual; each case is individual; justice is individual. Simplistic one-size-fits-all approaches do not remedy crime; they cause it. Rehabilitation works because it helps people change. One-size-fits-all approaches to criminal justice—in the form of extremist sentencing, mandatory minimum sentencing, “three strikes” laws, sentences of life without possibility of parole, death sentences, mass incarceration, mass supervision on probation and parole, the use of cash bail, and more and similar dumb ideas—do nothing to heal society or to make us safe. Stereotypes and their codification in criminal law are just shortcuts for people inclined toward simple answers rather than the hard, careful, and sometimes uncertain work that pursuing justice, case after case after case, requires.
For the People Page 10