Innocent Until Proven Guilty?
How the Bail System is Unfair to Everyone — Not Just the Poor
Recently there has been a much deserved enhanced focus on the plight of the poor caught up in the often unfair and unjust bail system that exists in many states across the US. There is broad agreement that the ability to quickly access large amounts of cash should not determine who does or does not have to languish in a prison cell as they await trial. I do not wish to diminish the suffering of those who cannot afford bail but another aspect of this system deserves consideration. It affects those who are fortunate enough to have the necessary resources to make bail and impacts the rich and poor, the guilty and the innocent equally.
I was recently involved in a domestic dispute that resulted in my arrest and brief incarceration. The details of the incident are not relevant but thankfully I only spent a few hours in a cell until I was able to see a judge (through video uplink), have the charges against me read, and informed of the conditions of my bail. The cash amount needed was relatively minor though it might have been a hardship for someone of lesser means.
My offense was a low level misdemeanor but I decided to hire a lawyer. I was worried about the impact on my record of a criminal conviction. I did not want to be denied an apartment or not offered a job because of something that would show up in any background check. Through my lawyer I pled innocent at my arraignment. He suggested a strategy of using continuances to lengthen the time before trial. He advised me that in many cases similar to mine the state would eventually drop the charges if enough time passes. The only requirement would be that I comply with the pre-trial conditions and submit to what is known as pre-trial supervision.
I had never been arrested before nor had I ever had any interaction with the criminal justice system or the courts. The idea of pre-trial supervision was foreign to me but I thought it was most likely a standard practice. I assumed that as long as I stayed out of trouble until my court date I would be in compliance. Instead I was thrown into a system which presumed guilt and inflicted punishment in the absence of a trial or conviction. Eventually I would come to discover that in some cases pre-trial requirements were more severe than typical punishments given to persons found guilty and sentenced to probation for identical crimes.
I was required to report once a week to a pre-trial officer (much like a parole officer for those out on bail who have not yet been to trial) in the same location as any other parolee or probationer. I was subjected to random drug screening any time I reported in. Moreover the pre-trial officer or their designate could come to my residence at any time, knock on my door, and ask about my whereabouts and activities. If I was not home or simply refused to answer the door I was subjected to intense accusations and verbal shaming at my next required visit. The visiting officer often requested that I allow them in to my house. I understood my rights and refused them on each visit. They did not have a warrant and could not legally enter my home without my permission. However, the officers often implied that things would go better for me if I simply complied. I was intimidated during these visits and have no doubt that a person with little or no knowledge of their constitutional rights would let the officer in.
The drug screenings were some of the most humiliating experiences of my life. I was required to urinate into a plastic cup while being observed closely. The attending officer or their designate stood 1–2 feet next to me and watched my actions through the entire process. This involved direct observation of the hands and the penis as I urinated. I am by nature a shy and reserved person. I have trouble urinating in public restrooms when other men are in the room. If a man takes the urinal next to mine I will often have trouble continuing and have to wait until they leave to finish. It goes without saying that giving a sample under these conditions was extremely difficult for me. I often could not go or could not produce enough urine to satisfy the officer present. When this happened I was asked to return to the waiting room and come back. I was often subjected to verbal taunting and the phrase “quit wasting our time” was uttered more than a few times in my presence. I was only observed by men while giving my sample but I am not certain if the procedures required that only men observe men. I have no idea how women were treated. In addition to the urine samples I was required to attend an outpatient substance abuse program at least twice a week. I was also drug tested with the same humiliating observation at the treatment program. In this case a female “nurse” watched as I produced my sample. A woman watching me pee was even more embarrassing though gratefully there was no taunting or verbal abuse. If I failed a drug test I was threatened with being sent to an inpatient drug treatment program or even possible jail time. Luckily I had insurance and it provided coverage for substance abuse and mental health treatment programs. Lack of insurance was not a viable excuse. I would be forced to pay out of my own pocket if insurance would not cover me. Each session ran between $100 and $200.
I was also required to submit to a mug-shot and fingerprinting. The mug-shots consisted of pictures of my face from every angle and of any distinguishing scars and/or tattoos. I had both and was required to remove my shirt in the presence of a female officer so that these could be photographed. Much like the drug screening process I felt ashamed and humiliated. I am extremely hesitant to remove my shirt in any situation. I was required to do so in front of a complete stranger who also happened to be a woman. When I objected and asked for a male officer instead I was told to “stop making trouble” and my request was flatly denied. The data would be entered into various state and federal databases. The specific location or identity of these databases was not supplied. Moreover there was no discussion of how my information would be treated if I were to be found guilty or more importantly found innocent at trial.
In the state in which I reside, the level 1 probationer (the least strict of the various probation options) is only required to report to a parole officer once. They are then monitored electronically to ensure no further arrests until the time of the probation, typically 6–9 months, has elapsed. The person on probation has been found guilty of the crime for which they were arrested, have entered a plea, had a trial, and been sentenced. A sentence of probation seems just in this instance and the requirements of probation appropriate. In my case, and the case of thousands of other defendants out on bail but awaiting trial the situation is quite different. We may be completely innocent of any and all charges yet we are required to submit to onerous and humiliating treatment with no recourse available to object or complain. We are threatened with further punishments if we do not comply. In many cases, the requirements of pre-trial are significantly more severe than those given to persons facing identical charges who have been tried, found guilty, and sentenced. Those in pre-trial programs are required to give up a significant amount of their time, are often required to spend large amounts of money, are subjected to random home inspections at any time without advance notice, and are forced to submit to humiliating random drug screenings. These “punishments” might be justified for the person arrested, given a fair trial, found guilty, and sentenced. They are however outrageous and morally reprehensible when forced upon those who have not yet been to trial and may be totally innocent of all charges against them. This abuse has to stop. The governors and state legislators who reside in states which perpetuate this system need to act now to abolish it completely or at the very least make significant modifications. The presumption of innocence is a cornerstone of the system of justice in the United States of America. Pre-trial supervision as it is currently practiced in many states violates this core principle and cannot continue.