June 9, 2018
American citizens don’t have a lot they can thank Paul Manafort for. Manafort, President Donald Trump’s former campaign manager, is suspected of colluding with Russia and enriching himself through years of influence-peddling that involved a multitude of financial crimes. But his indictment last year by special counsel Robert Mueller has done us a huge favor by drawing attention to one of the great travesties in the way America treats people accused of crimes: its bail system.
When he was indicted, Manafort received a felony defendant’s dream-come-true: staying out of jail on bail despite multiple counts (though he seems, since then, to have blown that deal to pieces — more on that later). Last October, prosecutors and the judge took the time to negotiate an intricate $10 million bond agreement with Manafort’s lawyers. He was allowed to live, with a monitoring device around his ankle, in various luxury residences he owns in northern Virginia; Palm Beach, Florida; and the Hamptons, a tony New York beach area.
It often goes this gentle way for influential people who find themselves on the wrong side of the law. Before Harvey Weinstein was arrested on rape charges last month, his defense team was able to negotiate a bail package that allowed him to stay free for $1 million, which he paid with a cashier’s check. When Weinstein was briefly taken into custody, police officers used three sets of handcuffs connected in a chain behind his back to spare him discomfort due to his considerable girth (and he still complained). He was whisked through the arraignment process in a notably speedy manner — surrendering at 7:30 in the morning, he left the court in time for brunch.
Despite a bail reform movement that made important headway in the past few years, fairness remains elusive for large numbers of people who are fed into the gears of the criminal justice system. I recently wrote about Reality Winner, a National Security Agency contractor who was denied bail after being charged under the Espionage Act for releasing highly classified information; other news organizations connected the charges to a story published by The Intercept on June 5, 2017, containing an NSA document that reported on Russian hacking against the U.S. voting system. Though the document Winner allegedly released helped alert Americans to Russian interference, and Manafort is suspected of helping the Russians, Winner is the one who has been confined to a small Georgia jail for more than a year before her trial, which is not scheduled to begin until October. (The Intercept’s parent company, First Look Media, has contributed to her legal defense through its Press Freedom Defense Fund.)
Manafort’s preferential treatment reveals a racial inequity, too: A disproportionate number of people harmed by the bail system are minorities. One of the most well-known victims was Kalief Browder, who was arrested at the age of 16 for allegedly stealing a backpack, and was held for three years on Rikers Island without a trial. At the beginning, Browder was jailed because he was unable to pay his $3,000 bail, and by the time his family raised the money, bail was no longer offered to him. He finally was released but his ordeal was not over. This week is the third anniversary of his suicide.
Most lawyers can only dream about their run-of-the-mill clients receiving Weinstein-style treatment for offenses that are less serious than the sexual assault charges against the Hollywood mogul. Defense lawyer Matthew Daloisio noted in a widely-circulated post on Twitter that while Weinstein got through the judicial system in less than three hours, the man who followed him into the same courtroom was held in jail overnight — for a total of 16 hours — due to an arrest for an unpaid $195 fine on marijuana possession.
Daloisio, in a phone interview, noted that most of the usually poor clients he represents receive no special consideration or even the time to argue for it. Cases in New York courts are handled in an assembly-line fashion, often with public defenders rushing to meet their clients to figure out what’s going on. They tend to be in front of a judge and prosecutor for less than five minutes before their bail requests are decided — compared with the apparently extensive negotiations that lawyers for Manafort and Weinstein conducted before their clients had their pre-trial fates delivered.
“That’s the model, that should be the model,” said Scott Hechinger, senior staff attorney and director of policy at Brooklyn Defender Services, which provides legal services to people who can’t afford a lawyer. “But the process afforded to the privileged is not afforded to the majority of people who are arrested. It’s not that I and other public defenders oppose the fact the Manafort and Weinstein and [Bill] Cosby are at liberty. It’s that the process available to them is never available to our clients.”
ONE OF THE inequities of the system is highlighted by Weinstein’s case. His net worth has been estimated at more than $200 million, which means $1 million in bail represents 0.5 percent of his assets — spare change. On the other hand, for the unlucky army of poor and working poor who enter the court system, bail of $10,000 or $1,000 is more than they possess. According to a 2016 survey by the Federal Reserve, about 46 percent of Americans do not have enough money for a $400 emergency expense.
“The injustices are not among the people who are multi-millionaires,” noted David Feige, board chair of the Bronx Freedom Fund, which pays bail for people accused of misdemeanors in the Bronx. “The injustices are among the people who are accused of shoplifting $5 in Advil and are sitting in Rikers Island because they couldn’t make bail. It could be $500.”
For these people, the ordeal of being behind bars is not the only dreadful consequence of the money bail system. It means they could lose their job if, for instance, they work in a service industry position for which an absence of more than a day can be grounds for dismissal. They could also lose their housing if they can’t make the next month’s rent because they are not working. When they get out, they could be homeless as well as jobless.
The upshot is that bail operates not as a way to ensure defendants show up for trial, but to coerce them to plead guilty. One of the reasons Manafort and Weinstein can go to trial is because they are not inconvenienced by the wait. According to the website of the Bail Project, a nationwide program to underwrite bail for people accused of misdemeanors, “90 percent of people who are held in jail on bail will plead guilty just to go home, even if they didn’t commit the crime.”
The courtesies provided to the 1 percent extend beyond giving them ample time to negotiate a get-out-of-jail package that does not unduly burden them. On June 4, prosecutors in Manafort’s case said he had violated the terms of his bail agreement by trying to tamper with witnesses, and called for his bail to be revoked or revised. They followed that up by issuing a new indictment against him on Friday that added obstruction of justice charges. Manafort’s lawyers have responded by calling the new charges “dubious” and “specious.” A hearing to reconsider his bail agreement is scheduled for June 15, when, if the judge chooses, Manafort could be sent to jail. That’s an 11-day window, from June 4 until June 15, during which Manafort remains free — while other people in that situation would probably be put behind bars right away.
Daloisio, the lawyer who tweeted about the defendant who followed Weinstein into court, represents several people accused of trespassing on a military base in Georgia to protest the nuclear weapons there. They have been released on bail, and one of the conditions was that they not get near another military base or engage in another protest. “If there was probable cause that any of them violated that condition, they would be detained immediately,” Daloisio noted.