Mike Fox
As a former public defender, I represented hundreds of poor individuals relegated to cages, having never been convicted of a crime, not because they were dangerous but rather solely because they were poor. Money bail does nothing to protect public safety. It simply dictates that if you have money, you’re free to terrorize others, and if you’re poor, you pay the price. As a DC resident, I understand that this misguided Executive Order won’t make my community safer. To the extent suspects charged with violent offenses are being released pretrial and reoffending, that begs deeper exploration because I suspect there’s more to the story than meets the eye.
In 2020, I received a handwritten letter from a client. She was pregnant, and the county jail was no place for a pregnant woman who hadn’t even been convicted of a crime, as the COVID-19 pandemic ravaged the facility. While I felt like I failed her because I wasn’t able to secure her release, she sent me a letter, thanking me for showing her that someone cared.
You see, it wasn’t supposed to be this way. The Eighth Amendment prohibits “excessive bail,” and for much of our nation’s history, the presumption was pretrial release. Historically, criminal defendants could only be held for short periods of time as needed to effectuate trial. This typically played out in two ways: either the accused was a flight risk or was intimidating witnesses.
This all changed in 1987, following the Supreme Court’s ruling in United States v. Salerno, which inverted the presumption. Today, nearly 75 percent of federal defendants are jailed pretrial. Salerno was a gift to prosecutors, who can merely assert that a defendant is dangerous, request that they be detained pretrial, and use that as leverage to coerce them to plead guilty. As a former public defender, I’ve seen numerous instances where prosecutors will offer a plea that would allow the defendant to walk at that very instant while simultaneously asserting that a defendant is dangerous should they opt for trial. Of course, these two things cannot simultaneously be true, but rarely—if ever—does the judge bother to inquire.
As if the proliferation of pretrial detention weren’t enough of a deviation from the original understanding of our Constitution, money bail is even worse because it enables prosecutors and judges to cage defendants simply for being too poor to purchase their freedom. My pregnant client languished in jail, not because she was dangerous, but because she was poor. Another client of mine remained trapped behind bars as I litigated constitutional motions and sought—unsuccessfully—to secure his release. Eventually, my client’s father saved up enough money to post his bail. Soon after, my client passed away at home from a heart attack, with his elderly father by his side. Had his father not been so committed to his son, my client would have died alone in a cage because he was indigent.
Money bail doesn’t make us safer. It satisfies the predatory bail bonds industry, which relies on it for its survival. Likewise, Trump’s move feeds into a misleading narrative that’s been spewed by police unions for years that bail reform laws fuel violent crime. Our Constitution deliberately makes it difficult to lock a human being in a cage—even for a short period of time—Salerno made it effortless, and Trump wants to make it even easier.
You don’t have to take my word. In 2014, when Brooklyn resident Tyrone Tomlin was falsely accused by an NYPD Narcotics squad of possessing a controlled substance, a prosecutor requested—and a judge set—bail at $1,500. This condemned the then-53-year-old construction worker to New York City’s notoriously violent Riker’s Island. Over the next three weeks—before being vindicated—Tomlin would endure a brutal assault, causing his eye to become swollen shut. Tomlin’s fate was sealed not even because he was dangerous, but because he’d picked up a lengthy criminal record as a younger black man growing up in an over-policed neighborhood.
President Trump’s executive order won’t make our communities safer, but it will help ensure that poor folks like Tyrone Tomlin continue to have their constitutional rights abridged. While DC is unique as a federal enclave, the principle of federalism enshrined in the Tenth Amendment means that states get to determine their own bail laws.
On the contrary, our Constitution confers upon the federal government the authority to protect the rights of vulnerable people from unconstitutional incursion by state actors. But instead of safeguarding the constitutional rights of all Americans, President Trump’s executive order follows a disturbing trend his regime has taken to trample on state efforts to preserve the rights of the accused.