Communities are misguided to keep opposing abolition of cash bail

It was the Friday before Labor Day weekend in 2021. I was appointed as public defender in Dallas to Spencer (not his real name), who’d been picked up on an existing warrant for failure to appear to a prior court date.

Spencer was experiencing homelessness and lacked transportation, making it nearly impossible for him to get to court. But his no-cost, personal recognizance bond wouldn’t be reinstated now due to the previous failure to appear. It was poverty, not criminality, that would cause him to remain behind bars until his case was resolved.

Illinois just became the first state to end cash bail. However, community reticence to ending the practice remains, despite supporting data.

According to the latest Bureau of Justice Statistics, there were 10.3 million admissions to the nation’s 3,000 jails in 2019, and approximately 730,000 people were in jail midyear that year. Approximately 65 percent of those in jail had been charged, but not convicted, of a crime. The law presumes their innocence.

Last month, a mistrial was declared for Maurice Jimmerson, who was behind bars for 10 years awaiting trial, the longest pre-trial detention in Georgia history and the second longest in the country, according to his attorney.

For those who can’t afford to post bail, whether it is $100 or $100,000, the pressures to plead guilty and get out are enormous, even for the innocent.

Most people who can’t post bail also can’t afford to remain incarcerated. The potential loss of their jobs, vehicles and residences due to incarceration is often a more pressing concern than the longer-term repercussions of a conviction.

Nonetheless, pleading guilty can result in a criminal record, which may also lead to job loss and an increased difficulty in securing future employment. As Dan Canon pointed out in his 2022 book “Pleading Out,” although the rapid-fire plea process creates judicial efficiency, it often places defendants in a permanent negative feedback loop.

Spencer’s underlying charge was criminal trespass — a common charge for people experiencing homelessness. Without money, family or other resources, the mere attempt to meet basic human needs can quickly mutate into a criminal offense.

I video-conferenced Spencer at the jail to discuss the various pathways to resolving the case. He qualified for a mental health diversion, which would end in a dismissal, but the program required monthly court appearances, provider appointments and compliance with all diagnostic recommendations. Because he had no transportation or support network, it wasn’t a viable option for him.

If Spencer chose trial, he’d remain incarcerated until then; but trial dates were suspended with a months-long backlog.

Alternatively, he had an offer to plead guilty and receive a sentence of time served. Like many of my clients, Spencer craved freedom more than he feared the consequences of a conviction. Even though he had no home to return to, he preferred the open sky to the confines of the lifeless cage where depression, disease and decay ran rampant. At that time, the Delta variant of COVID was ravaging the jail.

When Spencer was transported to the court, he appeared weary under the sterile fluorescent lights but listened as I went through his rights, the plea paperwork and rehearsed the list of questions he’d be asked by the judge. I had highlighted the spaces requiring his signature, making it easier to identify.

I slid the papers and my pen through the narrow slot and Spencer dutifully began skimming the documents, signing the highlighted places. I watched his fingers shakily grasp the pen. He identified the correct areas to sign, but the letters were crooked, starting on the line and then falling off, ever so slightly.

Something felt off, but I couldn’t place it. A sense of unease coaxed me to slow down. After Spencer reassured me that he was fine, I sped up. I should’ve known better.

Misdemeanor pleas are generally short, routine, and predictable. The judge asked Spencer whether he wanted a jury trial, and Spencer began stuttering, replying with what sounded like a “yes.” His eyes flickered and then rolled backward. Then his entire body went limp in slow motion as he began to fall.

The bailiff caught him before he hit the ground. Spencer became completely unresponsive and then his entire body began convulsing. I called 911. His symptoms subsided before the stretcher arrived. When Spencer regained consciousness, he had no recollection of what happened.

There would be no plea that day, and he would remain in custody.

Shortly after this incident, I was transferred to a different docket and lost track of the case because of my enormous caseload at the time. It continues to plague my conscience.

Every system failed Spencer, from health care, housing and urban development to law enforcement. I failed him too. In my singular focus to get him released, I failed to recognize the myriad of ways his own body was attacking him.

America leads the world in its incarceration rate, a shameful statistic that costs taxpayers in aggregate $80.7 billion dollars on prisons and jails.

A conflation of poverty, lack of availability of mental health resources, health care and housing — all services which a functioning system must provide as a safety net for those who need it — were unavailable to Spencer because he simply could not access them.

Access to all for affordable housing, mental health resources, no-cost rehabilitation for substance dependencies, access to food, clean water and transportation must be a priority.

Rather than invest in punishment, administrators and policymakers in states and counties should work to solve the systemic issues that masquerade as criminal offenses in the criminal justice system.

A collective investment from stakeholders — including lawmakers, police, lawyers, advocates, health care providers, family, friends, community and the entire justice system — can have long-term, multigenerational benefits than investment in incarceration, which does the opposite.

It is time to say no more and to do more.

Huma Yasin is a criminal defense attorney, former public defender, author of the forthcoming book Conspiracy: The True Story of the Fort Dix Five and a Public Voices fellow with The OpEd Project.