
The Bail Trap - japhyr
http://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html?_r=0
======
bail-throw-away
OK - so I just had two experiences with a bay area law enforcement agency, and
I am beside myself with disgust and anger:

I was accused of doing something I did not. I was taken to jail and they held
me on bail - and set my court date for about three weeks from the time I was
booked, but an arraignment in about 5 days.

I had just accepted a new job - but still had a week on my current.

I HAD to post bail (and I didn't really have the money for it) so I had to get
a bail bond. so I could get out and go to work!! This cost my $3,000 out of
pocket.

So I did, and then went to my arraignment: Guess what "no charges filed and
case rejected for lack of any evidence at all"

But now - I am out $3,000 and I have an arrest on my record for something that
was simply a false accusation! Further, WHile I was in jail over night, the
guards and police are absolute douchebags. They treat EVERYONE like crap.

I now hate all cops. ALL of them.

~~~
developer1
I sympathize with your situation, but am confused by "I am out $3,000". Do you
not get bail money back when your presence in court is concluded? I always
thought bail was a deposit, not a payment. You only lose your bail money if
you don't show up when required, no?

~~~
fnordfnordfnord
Laws vary by state but basically it amounts to: Bail was too expensive/risky
so he paid a fee to a bondsman to get him out. A bond is a guarantee provided
by a third party, the bondsman, that you will appear in court. It is usually
some fraction of your actual bail, like 10%. So if we assume 10% and $3,000
paid to the bondsman, then his bail was probably $30,000. If that's correct
then GP's alternative would have been to post $30k with the police until the
conclusion of his/her case.

~~~
addandsubtract
>A bond is a guarantee provided by a third party, the bondsman, that you will
appear in court.

How can bondsmen stay in business? I have no idea what the turn up rate of
appearing in court is, but I doubt it's 100%. So how are they allowed to stay
in business if just one person they bailed out fails to appear in court?

~~~
angersock
If I understand it correctly, a warrant is filed, and then it's no longer
their problem--they are, in effect, a hapless victim of the now at-large
criminal! :|

~~~
fnordfnordfnord
No, it's a problem for them. The bondsman or their insurer is out the amount
of the bail.

~~~
angersock
Ah, I stand corrected. If it goes to insurer, though, is it still a problem?

~~~
fnordfnordfnord
Yes, an insurer isn't going to pay many of these claims before they cancel
your insurance, and or your insurance costs will go up quickly to the point
where you cannot remain profitable.

------
xacaxulu
If you've ever dealt with police in other countries (I have everywhere from
France to Zimbabwe), the interactions are amazingly more peaceful. As a former
US Marine (Afghanistan and Iraq), the hyper-vigilant police mentality I see
more and more scares the heck out of me. It's no secret that it's getting
worse, and coupled with a racket like "The Bail Trap", prison industry based
products and one of the highest incarceration rates in the world, things are
looking very sad here in the US. I'm sure it's not perfect anywhere, but we
are way off base with our justice system. When you have to have a dash cam or
a hidden cam/mic on you to prove you didn't do anything, that's pretty sad.

~~~
Loughla
Sorry for how long this turned out to be. I believe the massive number of vets
returning from places like Afghanistan and Iraq has had quite a bit to do with
the increased tensions between civilians and police as well, and has also
contributed to the militarization of police across the country (at least in
attitude, if not in equipment).

Couple a newly returned squad of soldiers who are more than qualified for
civilian law-enforcement with a new incoming supply of armored transport and
military equipment, you can't avoid the militarization of the police force.

As anecdotal evidence; in my small area of the mid-west, our local county
police force (I'm ignoring the state and city cops for now) is comprised of
roughly 50 officers. Without the jail and office-dwellers, it's about 35 who
are on the street daily.

After looking it up, of those 35, 32 have less than 10 years' experience. Of
those 32, all were hired within 3 months of returning from Afghanistan or
Iraq.

I never put two and two together. I just noticed that the attitude in the
county has changed.

Whereas people used to talk to the police they met, and used to interact with
them at community events, they don't anymore (and the cops don't come to
church socials, community gatherings or celebrations anymore - they only stick
with each other). In the past, I have actually invited officers to the house
for lemonade, or even delivered it to them, when I saw them sitting at the
nearest speed trap spot on hot days. I've jumped their cars when they die.
I've even invited them to (illegal) fireworks displays - with no worries,
because they understood that we weren't idiots.

I haven't done any of that for over five years.

Why?

Because all the police now treat their police work like an extension of their
time in the military. All of them. Every one. Legitimately, they stick
together like it's still the military, and always have their fingers on the
trigger of whatever gun they're carrying when speaking to anyone who isn't in
a county officer uniform.

They're driving around with multiple firearms in rural areas where the crime
rate is non-existent. Honestly, I don't know where my house keys are because I
have never locked the doors.

In 8 years.

But, they've become, essentially, a little military. They practice swat
tactics, they practice distance shooting, they practice how to take down
dangerous criminals that don't exist in our area.

Why? What does that help? They should be practicing how to talk to children
without needing to touch a gun, and how to interact with adults without
treating them like criminals.

tl;dr: returning vets who refuse to lose the military attitude, increased
military supplies to civilian law enforcement agencies, and the shit-tons of
money to be made in corrections have all contributed to this problem of hyper-
vigilance.

~~~
EliRivers
_the increased tensions between civilians and police as well_

That's a big part of the problem right there. Police _are_ civilians [1], but
they have been picturing themselves as some kind of messed-up "soldiers
against crime" that they now believe their own nonsense; it's them against the
civilians (not them against criminals - them against civilians).

Hiring ex-soldiers to be police officers is part of the problem; military
training (of the killing people quickly through intense violence type [2])
teaches a mindset that is utterly unsuited to policing.

Living in the UK, I feel _safer_ with routinely unarmed police.

[1] Sure, in some countries the police are actually military or paramilitary
personnel, but those countries aren't being discussed here.

[2] Which is, of course, by no means all. I was reserve forces myself for
fifteen years and never touched a loaded firearm.

~~~
andrepd
Hit the nail on the head. All this overmilitarization of police seems to
create an image of a strong force keeping peace and security, when in fact
what it does is the exact reverse, and unarmed police like in the UK actually
fosters safety much better than the "soldiers against crime" attitude.

------
mindslight
The only real solution to this is to stop externalizing the cost of false
positives onto the victims.

Kidnap someone and put them in a cage for a month so they lose their salary,
job, apartment etc? That adds up to an awful lot of easily demonstrable
financial damage that the justice system is directly responsible for. Only
when false arrests and prosecution start directly impacting these
organizations' budgets will they possibly care about the harm they do.

~~~
jackgavigan
Going after budgets won't really bring about meaningful change. You'd need to
go after the individuals. In a circumstance like that described in the
article, it would not be unreasonable to investigate the police officers'
actions, specially the question of whether he truly had reasonable grounds for
suspicion that the straw was truly drug paraphernalia.

If not, prosecute him for assault, kidnapping, false imprisonment, etc.

I know it's never going to happen but one can dream...

~~~
mindslight
Our two proposals aren't mutually exclusive, but are essentially quite
similar. For any criminal case there is a corresponding civil action to make
the injured party whole. These perps are acting against the law, and as such
it's obvious they should be subject to both avenues of justice.

IMHO the civil approach is just a lot easier to adjudicate - when the victim
is found innocent, they should be immediately compensated for any and all
damages resulting from arrest, imprisonment, and trial. If the department
wants to recoup losses from specific individuals who went against policy, they
can settle that much thornier argument on their own time.

Proving that a specific individual acted criminally outside their mandate is
an even higher burden to meet. When this is warranted, it would be fantastic.
But we can envision many cases where an individual cop is following a
reasonable policy, yet it still results in an innocent being held in jail for
a day and losing their job as a result.

~~~
sokoloff
In the US, defendants are not found innocent. They are found "not guilty". OJ
Simpson is all likelihood the killer of his ex and her friend. The court did
not find him innocent of that, but rather found that the standard of proof had
not been met to find him guilty, ergo they find him "not guilty" but they
certainly did not submit a finding of "innocent".

The standard of proof in a criminal trial is "beyond a reasonable doubt". The
standard of proof in a civil trial is "by a preponderance of the evidence".
It's roughly the difference between "overwhelmingly likely to be guilty" vs
"more likely than not to be the case".

I don't think you can turn every finding of "not guilty" into a successful
civil standard of loss for the defendant. Suppose it's 95% likely that I was
guilty of a crime. That's likely to not meet the standard to convict, but turn
that around into a civil suit for false arrest or malicious prosecution and
I'm going to lose the case against the civil standards.

~~~
mindslight
> _I don 't think you can turn every finding of "not guilty" into a successful
> civil standard of loss for the defendant_

The civil standard would not be applied to the facts of the original case, but
to the result of the criminal trial. The "preponderance of the evidence" you
refer to is that the defendant was found _not guilty_ in the criminal case,
which is the sole indication of whether the criminal prosecution was correct
or not.

Yes, there will be close cases where the defendant seems awfully guilty, yet
is acquitted of the criminal charges. But arrest and imprisonment while
awaiting trial is _not supposed to be extrajudicial punishment_! It would be
perfectly reasonable for a defendant to lose the civil trial and have to make
the original victim whole, yet be reimbursed for his criminal defense attorney
fees etc.

~~~
sokoloff
Concretely, OJ Simpson should have been reimbursed for his arrest and
imprisonment?

Two questions:

1\. In your personal opinion.

2\. Under your proposed system change.

I don't "require" that a system change be perfect, just that it be an
improvement, but you can imagine that the idea of paying OJ Simpson for his
arrest, imprisonment, lost lifetime earning potential, etc, would be extremely
problematic to getting this change through.

I also worry that juries would feel pressure to shade the standard of guilt.
"I have what might be a reasonable doubt, but he's probably guilty and I can't
stand the idea of my taxes going to reimburse this scumbag, so I'll just round
it up to guilty..."

~~~
mindslight
OJ Simpson is an odd (but probably not uncommon) case where he could be easily
convicted of resisting arrest. So he's in a middle ground where damages from
the original arrest are unjustified, but damages resulting from his further
actions are justified. If he hadn't ran, he could have most likely posted
bail.

But I don't see anything fundamentally wrong with reimbursing OJ Simpson for
the time of his criminal arrest and imprisonment, especially because that
money would have just been used to settle the civil suit. Remember, _he was
found innocent_ (no double jeopardy + innocent until proven guilty). We both
can say the system got the wrong answer for this case, but insinuations or
references to a lower standard of proof don't actually change the verdict.

Step back to a much simpler case of actual innocence. While walking down the
street you are randomly arrested and held for a few days before you can post
bail. What is the justification for the salary loss from your missed work
being your responsibility, rather than the thugs' who caused it?

As far as encouraging judges/juries to find guilty for financial reasons. Do
we want to hold back reforms on the fear that our system is so corrupt it will
only worsen things? I can certainly see your scenario happening, but the
proper course is to then fix those problems rather than give up and keep
denying justice to victims of the "justice" system itself.

~~~
sokoloff
He was not found _innocent_. He was found _not guilty_.

The court is not charged with determining the difference and issuing a finding
of "innocent". They are only concerned with guilty vs not.

Contrast with NFL replay referees, which are for some reason (I assume
entertainment/excitement) charged with choosing one of three outcomes: ruling
on the field is overturned, ruling on the field stands, and ruling on the
field is confirmed. The distinction between the last two is without a
difference as to the outcome of the game.

I'd much rather 100 guilty persons go free than to wrongly convict a single
innocent as a critically important ideal. Any "reform" that has an obvious
mechanism that would bias the system to erode that in favor of a lesser
benefit is cause for concern for me.

~~~
mindslight
> _They are only concerned with guilty vs not._

Yes, because innocence is _presumed_. When a court finds "not guilty", it is
logically equivalent to "innocent". It's not a free pass to say "he was only
found not guilty; he's not innocent".

> _I 'd much rather 100 guilty persons go free than to wrongly convict a
> single innocent as a critically important ideal. Any "reform" that has an
> obvious mechanism that would bias the system to erode that in favor of a
> lesser benefit is cause for concern for me._

That biased mechanism already exists, although not to the same extent. A
judge/jury who can't logically infer guilt would still rather lock up a
scumbag, especially if they're likely to repeat offend. A large part of this
principle has to be embodied in the judge/jury itself.

Not that it should be made worse. I suppose juries could be given leeway over
the decision to reimburse, but it would be a larger change to our current
system (nothing I've advocated for here is an actual _change_ to the law, just
an enforcement of proper civil liability). And you could still end up with the
same problem where juries acquit yet routinely don't reimburse because
"taxpayers shouldn't pay for someone being at the wrong place". It's less bad
than that same person being in prison, but it's still wrong. Cops see "you can
beat the rap but you can't beat the ride" as a feature, but everybody who
believes in the rule of law should see it as a bug.

Of course nothing proposed here would change the fact that the sheer majority
of cases plea out due to draconian punishments for nonviolent crimes, and so
even long-held legal principles don't end up applying. But the present
situation is tough precisely because there are multiple pathologies that all
corrupt the justice system away from the fundamental ideals it purports.

------
conover
It's unclear to me how these situations are not a violation of the Eighth
Amendment.

United States v. Salerno: "the government's proposed conditions of release or
detention not be 'excessive' in light of the perceived evil."

Stack v. Boyle: "excessive" is "a figure higher than is reasonably calculated"
to ensure appearance

I guess it's easy to beat up people who don't have the means to defend
themselves. Someone should start an Occupy Justice movement and have everyone
request jury trials to cause a system crash.

~~~
abarrettjo
This makes me wonder whether a possible solution path could be to bring a case
about this to the Supreme Court.

~~~
justizin
The problem is not that the supreme court has never ruled on anything like
this, it's that all a supreme court ruling does is to give you something that
a good lawyer can refer to in your court case.

Being in the criminal justice system is incredibly expensive and high risk,
and as an individual, allowing your case to go to the supreme court requires
continually losing it.

------
gtCameron
John Oliver also did a great segment on this issue:
[https://www.youtube.com/watch?v=IS5mwymTIJU](https://www.youtube.com/watch?v=IS5mwymTIJU)

------
tyingq
The US prison/jail vendor ecosystem is a trap as well.

The phone system is a good example. Inmates have some scheduled time where
they can make phone calls, provided someone on the outside has funded an
account.

You, of course, expect it to be a little more expensive than normal phone
service.

However, here's the reality.

You deposit $25, then: \- $7 service fee for the credit card processing \-
$4.50 for the first minute of _every call_ \- then $2.50 a minute for any
subsequent minute

So, yes, a 2 minute phone call, within the same state, costs the family $14.

These are real numbers, from one of the big vendors in the space...Global Tel
Link. Source: Have relative that was in jail...this is what I had to pay.

Here's an older article on the subject:
[http://www.prisonpolicy.org/phones/pleasedeposit.html](http://www.prisonpolicy.org/phones/pleasedeposit.html)

~~~
tyingq
Just to note that phones are the tip of the iceberg. The jails and prisons are
taking huge fees from commissary accounts, charging fees to see a doctor (even
if you were assaulted), etc.

Also things like reducing to 2 meals a day to save money. Or worse. Search
google for Sheriff Joe Arpaio's outdoor tents, in Phoenix, where the average
high temp in July is 41C/106F.

It's really shameful.

------
tedks
""" Tomlin broke off to go inside the store and buy a soda. The clerk wrapped
it in a paper bag and handed him a straw. Back outside, as the conversation
wound down, one of the officers called the men over. He asked one of Tomlin’s
friends if he was carrying anything he shouldn’t; he frisked him. Then he
turned to Tomlin, who was holding his bagged soda and straw. ‘‘He thought it
was a beer,’’ Tomlin guesses. ‘‘He opens the bag up, it was a soda. He says,
‘What you got in the other hand?’ I says, ‘I got a straw that I’m about to use
for the soda.’ ’’ The officer asked Tomlin if he had anything on him that he
shouldn’t. ‘‘I says, ‘No, you can check me, I don’t have nothing on me.’ He
checks me. He’s going all through my socks and everything.’’ The next thing
Tomlin knew, he says, he was getting handcuffed. ‘‘I said, ‘Officer, what am I
getting locked up for?’ He says, ‘Drug paraphernalia.’ I says, ‘Drug
paraphernalia?’ He opens up his hand and shows me the straw.’’ """

This isn't even the main point of the article but I think it speaks volumes on
its own.

~~~
civilian
Yeah. I wish we'd restrict the definition of drug paraphernalia. And ya know,
end the drug war.

~~~
beat
It's a popular misconception that ending the drug war would end the injustice.
But as much as I'd like to see the war on drugs put to a swift end, it's not
the root of the problem.

Arrest quotas have become the standard for judging police officer performance
in many cities, and fines for trivial offenses have become a key revenue
generator for many local governments (see the DoJ review of Ferguson for a
particularly awful example). "Justice" for petty crime has become a self-
sustaining industry - and a profitable one, as we can see with the rise of
private for-profit prisons.

If it's not drug paraphernalia, it's some other charge - jaywalking,
loitering, and the ever popular "resisting arrest". A recent video interview
with a former Baltimore cop summed it up well. He pointed out that it's pretty
much impossible to drive a car or walk down the street without breaking some
law or another. So cops can easily arrest anyone, at any time, for largely
fabricated reasons.

Throw in arrest quotas and fine revenue as municipal funding, and you have a
formula for mass arrests and incarceration for trivial offenses. The trick
then is to find people who can be arrested who won't rock the boat
politically... the poor, and the non-white. Now, you wind up with a racist
justice system, not out of racist intent, but out of its very architecture.

The solution is for comfortable, safe, middle class white Americans to stop
ignoring and start caring.

~~~
tedks
>The solution is for comfortable, safe, middle class white Americans to stop
ignoring and start caring.

This is pretty laughable. Not only will the wider class of people benefiting
from racial and class privilege never actually care, but they'll be shocked
out of caring as soon as it impacts their bottom line.

Remember also that the FBI and other police organizations explicitly rely on
entrapment to make examples as to why people shouldn't be involved in
activism, so people from privileged backgrounds will be afraid to even get
involved in social change.

~~~
beat
I'm right with you there. On the other hand, I think it _can_ be done, with
the right leadership, and the right combination of circumstance, delicacy, and
brute force. Historically, it happened very quickly in the 1950s/1960s, due in
no small part to the arrival of television. When comfortable white America
finally saw what was happening, out of sight, they became agents of change
themselves. The distance from Brown vs Board of Education to MLK's
assassination is only about ten years, but things changed tremendously in that
time.

Likewise, I think the rise of easy cell phone recording and viral stories has
the potential to change the situation very quickly. We got our first taste of
this with Rodney King two decades ago, but it's really coming to the fore now.
We're seeing police getting charged with murder now in cases where they would
have gotten a commendation before, because the violence is recorded. I think
we're only a few years out from body cameras being standard equipment.

I've already noticed a significant change in tone in discussions online, with
a lot less reflexive defense of the police, and a lot less crypto-racist
"thug" stuff. Progress is being made.

------
rsp1984
Besides the questionable bail system, what I really don't get is why there's
jail time on minor drug possession delicts.

One can debate about the war-on-drugs (I think it's failed) but even if
society thinks drugs are a bad thing and worth fighting against it, it's the
dealers that should go to jail, not the people who use drugs. 30 days for
holding a straw that _might_ contain some heroin, _really_? Something is
obviously very very broken here.

~~~
WildUtah
If you want the war on drugs to work, arresting dealers is a waste of time. If
there's demand, then there are always more poor people willing to make easy
money as dealers.

Sending casual users to jail is the only way to cut demand. If the casual
users -- the most lucrative market -- get off scott-free then there's never
any limit to demand and consumption.

------
craigds
This kind of nonsense is why as a tourist, I would think _very_ carefully
before ever going to the US, and have little desire to.

Based on what I know about the place, I'd feel uneasy the whole time I was
there, as though I could be arrested at any moment just for crossing the road
the wrong way.

One time I took my Irish passport instead of my NZ one by mistake when
entering Australia, and I was subjected to dog sniffs and minor harrassment by
the border control staff, which made me very uncomfortable. From what I
understand that's nothing compared to what you can expect as a foreigner
entering the US.

Do other non-Americans feel this way or is it just me? I can't imagine this
situation does wonders for American tourism or business.

FWIW my experience of police (in both NZ and in Germany) has been that they're
always very pleasant to deal with.

~~~
chasing
Calm down. You'll be just fine traveling the United States. You might even
have a pleasant interaction with an American police officer which you can add
to your list. They're mostly just good people trying to do good work, just
like the rest of us.

~~~
spacemanmatt
[citation needed]

~~~
chasing
> [citation needed]

Look it up.

------
tsotha
There's are a lot of things to cringe about in this story, but bail isn't one
of them. The article says so-and-so was held in jail because he couldn't pay
bail, but that's not really accurate. The guy is held because he was arrested.
Bail is an out you get until the trail if you can convince the judge you're
gonna _show up_ for the trial.

IMO there are two real problems with the story about the "main character".
First, the DA comes to the judge with a case against a guy charged with
possessing a straw. The judge should have thrown it out and said "come back
when you have evidence of a crime".

Second, we have the means to protect inmates from each other. There's no
reason for a three week stay to mean a busted up face. Jail should be boring,
but safe, and the state should be liable for every rape or assault that
happens inside.

------
russnewcomer
In reading the article, part of the conclusion that I came to is not that cash
bail is inherently broken and unfixable, but the sense of scale by the people
setting bail is. To a lower-income person with minimal savings and
unpredictable income (like most of the subjects of the article), an unplanned
$500 expense like bail is potentially crushing, whereas to a higher-income
person with decent savings and regular predictable income (like the judges),
an unplanned $500 expense is annoying but not catastrophic.

Restructure the law so that bail cannot be easily set over $100 for non-
violent misdemeanors, and that 100% of the bail is returned to the person
posting it for amounts under $1000, and NYC (of which I am not a resident)
will be well on it's way to solving the current problems of the bail system,
and then have a whole new host of problems with the new system to solve in 50
years once all of its weaknesses are exploited.

[edit] corrected improper use of bailbond to bail

~~~
testin0000001
Just a little quibble... if 100% of the bail bond is returned to the accused,
how exactly does the bail bond company make money?

If the bail bond company can't make money on the deal, they won't offer their
services...

Which would end up making it harder for the relatively poor to make bail...

How about this: Just get rid of bail entirely for low level offenses. When a
minor crime is expected to be charged, bring the suspect in, fingerprint and
identify them, give a court date, then... let them go home.

~~~
mikestew
> Just a little quibble... if 100% of the bail bond is returned to the
> accused, how exactly does the bail bond company make money?

The bail bond company wouldn't be involved at all if the accused has the money
for bail. The bail _bond_ company is bonding the accused for the whole amount,
that's the (typically) 10% the accused is paying. (EDIT: and if you don't show
up for court, the bond company is authorized to go get you and drag your ass
in. 'cause they're out their money otherwise. And thus you get such quality TV
as _Bounty Hunters_.) However, if you can muster the whole amount, you don't
need a bail bond company. Ergo, if bail amounts were reasonable, we would have
less of a need for bail bond companies.

Your last paragraph is covered by "OR" or "own recognizance". IOW, you go home
with no money out of pocket. However, one must wait until arraignment before a
judge before OR is an option. Waiting for arraignment is the part we could get
rid of with your proposal.

------
rectang

        > Without bail — and the quick guilty pleas
        > that it produces — courts would come under
        > significant strain. "The system would shut
        > down," Goldberg says.
    

It doesn't cost much to bail out some poor people. Seems like a great
opportunity to screw with an unjust system!

~~~
ma2rten
How much does it cost? I think it is at least 10k for the least serious
crimes.

~~~
justizin
It easily goes into the hundreds of thousands, and when people with mental
illness end up in jail, off their meds, they often stack up all sorts of
charges for relatively minor behavior that sounds ominous on paper as "assault
on a penal officer" or somesuch. Now you can get bail in the millions, and
prejudice from every corner of the system.

It's no longer about a straw, it's about a guard who says you punched them
when in face five people were holding you and you had a spasm or something.

~~~
rectang
You don't need to bail out _everybody_ for this hack to work. Just bailing out
those with bail under N dollars should be enough to DOS the courts.

------
CPLX
There is a four word solution that would wipe out a massive, massive
percentage of this problem: End the drug war

------
yason
I'm somehow always a bit worried when travelling to the US and reading these
stories just makes it worse. I don't know what the risk for a visitor is in
reality. These cases seem to happen out of nowhere. I don't have any reason to
be arrested, really, and I'll probably be fine absolutely most of the time but
if something should happen and I happened to be around I'm, as a foreigner, in
a very weak position to understand what's going on.

I should probably read a couple of books on US legal system and how things
work there but the need for doing so would usually arise from having to travel
to some totalitarian developing country. In certain countries, you should
expect to have some money as it might be customary to bribe the police officer
or other officials but once that's settled things generally unfold fine from
there. It seems that in the US, you should expect to have lots of money as it
might be customary to bribe the court yet things can generally get quite
uncertain from there, based on what I've read. It's hard to evaluate the risk,
though: the probability is rather low but the impact can be devastating.

I get the feeling that if only you're a "regular Joe", ideally white (or fit
in the "good" ethnicity of your city), you don't stand out of others, and you
have money, you're likely to be fine. The further you deviate from that the
more unpredictable things can get.

------
gohrt
The average persons more powerful weapon against police misconduct is Jury
Nullification. Refuse to convict defendants until the police start obeying the
law.

[https://en.wikipedia.org/wiki/Jury_nullification](https://en.wikipedia.org/wiki/Jury_nullification)

~~~
Tenhundfeld
If you're considering this, read up on the law, and ideally, get advice from a
lawyer who knows the laws and precedents of your state and local judges. It's
a trickier subject than you might expect.

I got called to serve jury duty several years ago, and being somewhat familiar
with jury nullification, sought advice from a lawyer friend.

I don't remember the exact details of his advice, but it was generally this:

1) Don't even hint that you're aware of jury nullification during jury
selection and examination.

Obviously don't lie if asked a direct question about it, but that doesn't
really happen. Instead, you might be asked something like, "If the evidence
proves the defendant guilty beyond a reasonable doubt, can you enforce the law
regardless of your personal beliefs about whether the law is correct?" Just
answer "yes" and be quiet – unless you honestly don't think so. (Remember, you
won't know much, if anything, about the case at this point. So, abstractly,
you probably _can_ set aside personal beliefs if the facts of the case warrant
it.)

2) Don't ever use the words "jury nullification" when deliberating with the
other jurors.

Judges can and will remove jurors who are openly engaging in jury
nullification. There have even been instances of judges holding jurors in
contempt for it, but according to my lawyer friend, those cases were
overturned. Regardless, you will likely be removed from the jury and possibly
have further hassles.

3) In jury deliberation, remember that you don't _have to_ convince the other
jurors of your position. If you don't feel right convicting the defendant, you
don't have to. Just stick to your guns and let the jury be hung.

I was glad I sought advice, because I ended up engaging in jury nullification.

In my case, the defendant was charged with a DUI for essentially being
obnoxiously drunk in his driveway on private property. He was playing music
through his truck speakers, with the windows down. The engine was not on, but
his keys were in the ignition – to enable the electrical system. He was having
a party, with friends over, a grill going, etc. He had not signaled any intent
to leave the party at his own home, and the prosecution didn't argue that he
was planning to drive anywhere. But in my state, being intoxicated and having
your keys in the ignition (or even initiating a sequence of events that will
result in driving) is grounds for a DUI.

I understand the reasons for the law being worded that way. If somebody is
obviously drunk and walking towards their car to leave a bar, cops need to be
able to stop him before he actually starts driving. However, in my case, what
actually happened is the defendant mouthed off to the cops, and my
interpretation is they were punishing him for being disrespectful. They could
have just told him to turn down his music or issued him a noise violation and
moved on. He was not planning to drive his car anywhere or endanger anyone.
Instead, they unnecessarily escalated the situation.

A DUI can be a felony and can result in losing your job or being excluded from
future jobs. It's serious. I didn't think this guy deserved that – despite
coming across as a total asshole during his testimony. I tried my best to
convince the other jurors, but they all ultimately felt they had to enforce
the law as it exists. According to the law, he did commit acts that
technically constitute a DUI. So, they all voted guilty – even though many
thought it "wasn't fair."

After 8 hours of deliberation, we ended up with a hung jury and me being the
sole dissenter. I will admit it was exhausting to keep arguing for the guy,
when everybody is tired and just wants to go home. I was also very relieved
when I went home that night, searched public convictions, and found none for
the defendant.

Anyway, if you get called to serve on a jury, please don't try to get out of
it. It's a great honor and responsibility, and we need more intelligent, free-
thinking people in our juries. But do educate yourself on jury nullification
beforehand.

~~~
calebrichardson
What type of arguments did you make during the deliberation?

You can't exactly say "I don't want to apply the law in this particular case."

~~~
Tenhundfeld
Yeah, I left out some of the details of the case, just because my comment was
already long.

1) We heard a conversation between the senior officer and the arresting
officer. (Actually a reading of a transcript of the conversation, because the
original recordings were "lost".) I don't remember all of it, but the gist was
the trainee asked if she should charge the defendant with a DUI and the senior
office replied something like "It's your call. We could go either way."

2) The jury was never actually told the defendant's BAC. I don't know exactly
why, but my impression is there was some technicality that made the test
inadmissible.

3) We heard testimony from the arresting officer about the field sobriety
test. However, she was a new officer still being trained, and this was only
like the 5th real field sobriety test she had conducted. And the senior office
had her restart it about halfway through, for reasons that we weren't allowed
to hear.

4) We heard testimony that the guy had drunk ~5 beers in the 2 hours before
the cops arrived.

I'm sharing those now, because they're the crux of the arguments I made.

I tentatively started out trying a line of reasoning that if the senior
officer thought they could have not charged him, that means the cops have
discretion about when it's appropriate to enforce a law fully. And don't we as
jurors have a similar right. Isn't that our role in this? If it's just a
matter of enforcing laws, a judge is better qualified. Our humanity and
discretion is the point of having a jury of peers.

I tried reminding people of times when they probably broke this law, e.g.,
tailgating, at the beach, at a campground. There are lots of instances where
somebody might have their key in the ignition, while consuming alcohol, but
they shouldn't be charged with a DUI. There's the letter of a law and the
spirit of the law. Yadda yadda.

I actually thought I was getting to some folks, until the foreman reread the
judge's instructions to the jury, which were basically, "Your duty is to apply
the law as it is given to you, whether you agree with the law or not." That
type of wording is common in jury instructions, but I think it should be
disallowed. It immediately shut down that whole semi-jury-nullification
argument I was making. The rest of the jury felt they had to enforce the law –
even though I tried to make the case that cops are also duty bound to enforce
the law and they use discretion about when to charge people, likewise with
district attorneys. They wouldn't buy it. The judge's instructions were too
authoritative – or I wasn't a good salesman.

So, I figured I'd pushed the jury nullification envelope as far as I could
safely. I changed my tactic to argue that I didn't think the guy was drunk –
at least not beyond a reasonable doubt.

We didn't find out his BAC. His sobriety test was inconclusive, for me. And
while 5 beers in 120 minutes is a lot, this was a pretty big guy, probably
6'1", 230 lbs. That's my general weight class, and I've used the BAC
calculators before and played with a friend's breathalyzer. I know I can have
3 (12oz, regular bav) beers per hour and stay right around 0.08%. (I wouldn't
drive after drinking 3 beers in an hour, but it's good to be aware.)

So I just kept arguing that I wasn't convinced that he was drunk. One of the
other jurors actually got pretty belligerent, a few exchanges like this
(almost verbatim): Them: "COME ON! You really don't think he was intoxicated
after chugging 5 beers? Is that how you party? Drink a sixer and hop in the
car?" Me (ignoring the ad hominem bullshit): "He probably was intoxicated. But
likely is not the same thing as 'beyond a reasonable doubt'. And I'm not
giving this guy a DUI for possibly, maybe being intoxicated and playing music
from his truck!"

He kept pushing me, and finally I just turned to him and said, "Look, I don't
_have to_ convince you. I don't have to even talk to you. I'm voting my
conscience. You vote yours." That finally shut him up, mostly. In his defense,
this was like hour 7 of deliberations.

I'm really glad I had this experience, but it was somewhat frightening to
watch what the other jurors would do just because the judge gave them
instructions. :(

------
mcantelon
There seems to be a lot of NGOs opposed to cops, the prison industrial
complex, etc. but AFAIK there's none that will provide bail aid, which would
likly make more of an impact than anything.

~~~
bcks
Well, the Brooklyn Community Bail Fund is mentioned in TFA:
[http://www.brooklynbailfund.org](http://www.brooklynbailfund.org)

Also in NYC:
[http://www.thebronxfreedomfund.org](http://www.thebronxfreedomfund.org)

~~~
mcantelon
The article yields its fruit! Thanks!

------
codecamper
Maybe technology could help this situation?

It sounds like a big part of the problem are too many arrests for things
without enough evidence.

Wouldn't everyone benefit for better logs & statistical analysis? If a certain
police officer had a 15% conviction rate, and he actually liked his job, then
he'd be sure next time to be more sure about his arrests. Such a tool could
track recent trends as well.

Also, it sounds like there needs to be a system (email??) to contact
employers. All employers required to have an official address and courts are
required to contact it with current case status.

Anyone else have ideas about how tech could help the situation?

~~~
conover
What about on the other end: an automated system to assign bail amounts? Plug
in charges + criminal history + financial status into a system that determines
bail. That way it's in the hands of a computer and there is no blowback to a
particular judge/prosecutor/etc.

~~~
AnimalMuppet
Then any judgment is removed from the system. Judges can abuse that power, and
they can have bad judgment, but an algorithm has no judgment at all. Worse,
you can get people turning off their mind as to whether it made any sense,
because "that's what the computer said".

People are in the system for some good reasons...

~~~
codecamper
Hmm. Actually, the algorithm could be very transparent. It would be there to
consistently apply the rules. If the rules were too harsh, and not effective
in some way, they can be tuned.

The algorithm could be as simple as:

first time offender, non violent case, 0 bond second time offender, non
violent case, 100 bond etc.

Another idea that may benefit all would be to force people who have gone
through the system to create a bond "deposit account". Like a health savings
account. This amount could be collected slowly over time -- forced deductions
from pay.

People without jobs or money -- must be released without bond then, in the
case of non-violent crimes.

------
eevilspock
I wish HN was more inclined to vote up articles like this and figure out how
the tech community can effect change. Most of us will never be subject to this
injustice, so it is ever so easy to avert our eyes and focus on topics such a
_Apples Products are Getting Harder to Use_ and the 1983 version of _Unix
System V Release 1 Programming Guide_ , both of which are ranked higher and
have more comments despite being posted 9 hours earlier.

~~~
davidw
The world is full of 'outrageous' things: we could easily keep the front page
full of them.

But then we'd lose what we came here for in the first place.

There are other places for these kinds of articles.

~~~
nickff
I agree with the first two sentences of your post, but I am left to wonder
where the places for these kinds of articles are. I have little reason to
believe that these problems are going to get more public attention in the
future than they are getting now, which is to say that I have little hope of
fixing these issues.

~~~
mhurron
> I am left to wonder where the places for these kinds of articles are

Sites that are not specifically about other topics? How about places that are
primarally focused on the US, because as discussed, it really is a US only
problem.

Should every site everywhere only be posting about social problems? Can no
other topic ever be discussed until every socail problem is solved?

HN is actually pretty broad given its topic of things that are of interest to
'hackers' which is why articles like this will be posted and discussed but
there are other things that are also of interest to 'hackers.' Those will also
be posted and discussed.

------
abarrettjo
The same author writes on this topic/related issues somewhat frequently.
Here's one on the origins of the police force itself:
[http://www.nytimes.com/2015/01/18/magazine/the-point-of-
orde...](http://www.nytimes.com/2015/01/18/magazine/the-point-of-order.html)

------
graycat
I'm not a lawyer but I am a US citizen.

To me, the police, prosecutors, and judges in the OP are, really, just out to
attack the poor people, just attack them like wild, mad, rabid dogs, attack
them for no good reason, just declare war on them, out of hate, arrogance,
self-exalted ego, like thugs that just like to beat up on people.

Let's see:

"Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law.

Amendment VIII

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

So, the OP violated:

"Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, ..."

The trials are not "speedy". Any judge who has any respect for the
Constitution and is not out just to act like a wild, mad, rabid dog out to
declare war on the poor people should immediately dismiss any case without a
"speedy trial".

So, the OP violated:

"Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, ..."

The "right of trial by jury" was not "preserved". Instead, the delays in the
system and the excessive bail canceled that right.

So, the OP violated:

"Amendment VIII

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

The bail was deliberately excessive and the jail situation "inflicted" "cruel
and unusual punishments" as a means to coerce a guilty plea without a trial.

In addition, from

"The rest of the file contained Tomlin’s criminal history, which included 41
convictions, ..."

the system clearly convicts and punishes the defendants based not on the crime
they are accused of but often just on the record of _crimes_ of the past,
_crimes_ for which they have "paid their debt to society", that is, multiple
_jeopardy_.

In addition, it is now essentially illegal to carry more than, say, a few
hundred dollars in cash. Seeing such cash, it is common for the police just to
confiscate it, in wild violation of

"Amendment V

... nor be deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just
compensation."

So, from the OP:

"The documentation submitted by the arresting officer explained that his
training and experience told him that plastic straws are 'a commonly used
method of packaging heroin residue.'"

That's essentially the same as saying that "his training and experience told
him that" commonly criminals breathe and that he observed the defendant
breathing so arrested him.

The judge should have laughed the police officer out of the court room and
asked the public defender to file charges of false arrest against the officer
and bringing a nonsense legal case against the prosecutor. Instead, the judge
just went along with wild, mad, rabid dog attack on the citizen.

No, clearly, actually his training and experience told him that the defendant
was poor so should be viciously attacked with the intention of ruining his
life -- the excuse was that he had in one hand a bottle of soft drink and in
the other hand a soda straw.

Here the police, prosecutors, and judges are just declaring war on a large
fraction of US citizens -- just war, no cause, no reason, wildly illegal and
unconstitutional, very dirty business.

The whole system is wildly in conflict with the Constitution. If the US legal
system had any honest functionality at all, then any lawyer should be able to
make a motion that would shut down the whole situation coast to coast in an
hour.

------
danielweber
A colleague had his ex file for child support, putting him suddenly thousands
of dollars in the hole (it was backdated to when they separated, not when she
asked for suppor) because he's not from a socioeconomic class that keeps
thousands of dollars hanging around.

That left him unable to renew his driver's license, drastically impacting his
ability to get work and pay child support.

He now, for unrelated reasons, has full custody of his kids. But he still
can't get a driver's license to get a job to support his kids because he's
still behind on that child support. For the kids he has in his house.

He deserves some responsibility for this, but it's like the system wants him
to fail and fail hard.

~~~
ectoplasm
He's unable to borrow money from friends / family / bank / mortagage / credit
card to pay the child support?

~~~
ceejayoz
People who don't have thousands lying around _tend_ to have friends and family
in similar financial situations, may not have a bank account, probably don't
have a mortgage, and little credit.

~~~
ectoplasm
It was an honest question. GP did say "his house". The fact that not everyone
conforms to "tend to" stereotypes is exactly why it's worth asking these
questions. Plenty of poor people in America have buckets of debt. Also,
there's always pawn shops and the mob. Unpalatable, but still better than not
being able to work.

~~~
ceejayoz
It's an honest question that appears to illustrate the lack of understanding
of what it's like to be poor. "There's always the mob" is just tone-deaf IMO.

~~~
ectoplasm
I was speaking from personal experience. Borrowing from illegal sources is not
out of the question. For example, one of my friends is always borrowing money
from the mob so he can buy more coke. He's currently about $20K in debt.
Another one of my friends was tied up and threatened with a blowtorch
amputation unless he paid back his loan. Another one was dragged into a bush
and beaten up outside his apartment at 3am because he was overdue.

If "understanding the poor" is your goal, you'd do well to dispense with the
condescending generalizations.

~~~
ceejayoz
The example consequences you lay out seem _significantly_ worse than being
unable to renew a drivers license, so I'm not sure why you're presenting them
as viable options.

~~~
ectoplasm
As long as you pay them back, the mob won't give you a hard time. If you just
want the money to get a job, and you're not using it for drugs, you'll be
fine.

But, mostly this was just me refuting your claim that I don't understand what
it's like to be poor (and desperate). I could go on, in ways that don't have
anything to do with organized crime, but I have to go now. It's really
infuriating being told by someone that doesn't understand your experience that
you don't understand your own experience.

