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Barred from Freedom: How Pretrial Detention Ruins Lives 

Wednesday, Nov 21 2012
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Illustration by Anthony Freda


He lost his apartment and his car. Most of his possessions were in a dump somewhere. His debt was in the thousands. The brother he provided for was sent into transitional housing.

Anthony Dorton was finally out of jail. But his path to freedom had come with a cost.

He would re-enter society on an August night, relieved that the San Francisco jury believed his side of the story. He couldn't erase the anger, though, hardened and entrenched by 10 months locked up for a crime he didn't commit and hadn't been convicted of.

A sheriff's deputy swung open the bulky steel door.

"Ten months and just like that, huh?" Dorton muttered.

The deputy patted his back and said, "You should just be happy you're free."

Dorton clenched his jaw. The deputy walked him into a small room to change clothes. Dorton traded his inmate orange for the white T-shirt and blue jeans that had been waiting for him. They still fit, even though the jailhouse workouts had given him some added bulk. "If I gotta be in jail," he'd told himself during his stay, "I might as well look like it."

Soon he was outside in the chilly darkness. He carried a plastic bag heavy with belongings accumulated in his cell: books, magazines, and papers filled with notes on the auto mechanic business he planned to start once he got out. He looked skyward and took a deep breath. He'd forgotten what fresh air smelled like.

The legal system had worked out the way it was designed to. A woman accused Dorton of assaulting and pimping her. The prosecution's case fell apart when jurors learned that the woman had no marks on her face a few hours after the assault supposedly occurred, and that she had continued working as a self-employed prostitute in the months leading up to the trial. The jury acquitted Dorton on the assault allegation and hung on the pimping count. The district attorney chose not to re-try.

Now Dorton was as free as the day before he first stepped into the stark, gray Hall of Justice. Most everything else in his reality, however, had drastically changed.

Judge Gerardo Sandoval had set his bail at $300,000, which meant Dorton's freedom hinged on paying a bondsman a $30,000 non-refundable fee. The 23-year-old, who had recently been laid off from his job installing cable for Comcast, didn't have it.

So he lingered behind bars, awaiting the chance to prove his innocence, as the court process lumbered forward. Jail meant no job applications or picking up unemployment checks, no making rent or car payments, and, by extension, eviction and repossession. By the time justice was served, Dorton's life was in ruins.

It's the filthy secret of the American judicial system: A majority of county jail inmates have not been convicted of any crime. They sleep and eat among the proven criminals, and are treated as such, packed in crowded barracks and transported in chains, because they did not have enough money. More than 60 percent of America's jail population has not been convicted, more than 70 percent in California. In San Francisco, 83 percent of county jail inmates have not stood trial. (The DA's office doesn't keep stats on what percentage of those charged end up convicted.)

"There are many people that, keeping them in custody doesn't improve our public safety," says District Attorney George Gascón. "Many of those people are only in there because they could not afford to pay bail."

Those inmates are casualties of a bail system in which freedom is determined not just by a person's perceived risk to society but by the wealth to their name. It is an institutional flaw that has existed in America since the colonists brought over the concept of bail from England, where it had been law for centuries. The Founding Fathers wrote in the Eighth Amendment that "excessive bail shall not be required," but for decades public officials and reform advocates have stretched and twisted the exact meaning of "excessive."

"We see lives destroyed on a regular basis," says Carmen Aguirre, an attorney at the Public Defender's Office.

People who live paycheck to paycheck lose their paycheck and all that comes with it. Some lose their homes. Others lose custody of their children. Many see their family struggle to make ends meet. Banished to constitutional limbo, they see the world proceeding as their lives remain locked down and frozen.

"It's a trap," says Dorton. "It's wrong. It's cruel. It's just hella fucked up."


The basic purpose of bail is to ensure that a person shows up to court. But in order to achieve this, the system must address two conflicting goals: to support the maxim that a person is innocent until proven guilty and to keep off the streets those defendants perceived by law enforcement to be dangerous. Debates over American bail policy have been debates over shifting the weight of this complicated see-saw, from protecting the public to protecting the rights of the accused.

The birth of the modern bail reform movement came in 1927, when sociologist Arthur Lawton Beeley published a study on pretrial detention in Chicago. He concluded that the monetary bail practice had produced a system where freedom was primarily based on wealth. Academic studies over the next few decades furthered Beeley's findings, and by the 1960s reforms emerged.

"The rich man and the poor man do not receive equal justice in our courts," U.S. Attorney General Robert Kennedy told the Congressional Subcommittee on Constitutional Rights and Improvements in Judicial Machinery in 1964. "And in no area is this more evident than in the matter of bail."

In 1961, the Manhattan Bail Project sought to quantitatively measure a defendant's flight risk in an effort to increase the rate of releases on the defendant's own recognizance (OR), where the accused just has to promise to show up for his court date. Following this trend, the Bail Reform Act of 1966 declared that defendants in non-capital crimes (all but the most heinous murders) had a right to be released on OR. If a judge determined that additional conditions were necessary to ensure the person's court appearance, then the judge had to select the least restrictive conditions possible, such as travel limitations, home detention, or monetary bond. Pretrial incarceration would be the last resort, used after a judge deemed all other alternatives insufficient. The legislation ruled that a judge's only pretrial goal was securing a defendant's appearance in court.

About The Author

Albert Samaha

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