Time to Abolish Cash Bail

I’m glad to see that abolishing the unjust, corrupt cash bail system is breaking through as an election issue.

The row house on Cecil Avenue was just like any other in the rough-and-tumble East Baltimore neighborhood where Rafiq Shaw lives. But one chilly day in December 2015, he had the bad luck to be walking by right as the police were getting ready for a raid.

“All out of the blue a bunch of police cars pulled up and grabbed me,” Shaw told me in September. “They threw me to the wall and put cuffs on me.” The officers insisted he had come out of the house, which Shaw just as vehemently denied. “They thought I was someone else,” he said. “That’s what they thought the whole time. They called a name out that wasn’t me.”

Shaw is a tall, heavyset thirty-one-year-old black man with a booming voice and an easy smile. He told his story almost cheerfully, emphasizing the absurdity of the harrowing situation he was describing.

Over his protests, Shaw continued, the police dragged him into the house, where a woman inside told the officers she had no idea who he was. The officers pushed him onto a couch and went through his pockets, finding the keys to his mother’s car, parked nearby.

Later, at his trial, in August 2016, officers would testify that Shaw consented to a search of the car. (Shaw told me he didn’t.) They also claimed to smell marijuana, although the doors were shut and the windows were up. Shaw’s attorney, Maryland public defender Angela Oetting, said that’s a claim Baltimore cops often use to justify searches of her clients.

The police did not, in fact, find marijuana in the car. But they did claim to find a gun, stashed in the glove compartment. It was a discovery that stunned Shaw, who said he has never owned a gun. “And this was my mom’s car,” he added. He was arrested and charged with two offenses: illegal possession of a handgun and possession of a handgun in a vehicle on a public road, punishable by up to three years in prison.

Police had no evidence, such as fingerprints, to prove the gun was Shaw’s. He didn’t even have a key to the glove compartment; the cops had to smash it open. After less than a half an hour of deliberation, the jury found Shaw innocent on both counts.

But Shaw is still paying for the crime he never committed. He’s on the hook for the $10,000 his family agreed to pay the bail bondsman who got him out of jail two days after his arrest. In Maryland, as in the many other jurisdictions that rely on private bondsmen and a money bail system, bail arrangements are private contracts, unrelated to court outcomes. Innocent, guilty, or charges dropped—as often is the case—the bondsman still collects his fee. “It’s crazy,” Shaw said. But it’s the inevitable result of a privatized pretrial system dependent on a commercial bail bond industry.

The stated purpose of cash bail is to ensure that defendants show up in court and that dangerous people stay off the streets. By requiring some amount of money up-front and threatening further cash penalties, defendants are motivated to comply. Or so the theory goes. But it’s increasingly clear that cash bail doesn’t accomplish these goals either fairly or efficiently, and that alternatives that don’t require defendants to pay for their release are actually more effective. In the large swaths of the country that still rely on cash bail, it’s all too often the poor—not the dangerous or delinquent—who remain behind bars when they can’t afford to purchase their freedom. Those who do pay bail, like Shaw, often find themselves in another kind of prison: shackled for months or years to a debt that hobbles their opportunities to get ahead. And it’s the government, prodded along by a powerful bail lobby, that enables the industry’s privileged position by providing a steady stream of clients, by protecting the industry’s right to collect, and by unthinkingly setting bail amounts that leave defendants little choice but to finance their freedom with a bondsman.