By D. Kevin McNeir
Special to the AFRO
kmcneir@afro.com
On Monday, August 25, the 47th president of the United States signed two executive orders to end cashless bail – a decision which he asserted will protect Americans.
In the two executive orders, one focusing on the District of Columbia, where the president has declared a “crime emergency,” and the other targeting jurisdictions nationwide, he has threatened to either withhold or revoke federal funding to local and state governments that offer cashless bail, citing the policy as a threat to public safety.
“When these individuals are released without bail under city or state policies, they are permitted – even encouraged – to further endanger law-abiding, hard-working Americans because they know our laws will not be enforced,” the president wrote.
“I will require commonsense policies that protect Americans’ safety and well-being by incarcerating individuals who are known threats. It is therefore the policy of my Administration that federal policies and resources should not be used to support jurisdictions with cashless bail policies, to the maximum extent permitted by law.”
However, as one attorney based in Alexandria, Va., noted, the impact on some Americans will be disproportionately negative.
“The history speaks for itself – this latest move by the president will adversely impact marginalized communities who are often unable to afford a secured bail,” said Robert L. Jenkins Jr., attorney at law with Bynum and Jenkins Law Office.
“Cashless bail came into vogue in efforts to put people on more equal footing – poor people who, unlike their counterparts, lack the financial means to post bail and therefore avoid longer pretrial detention periods. That’s what’s so unfair about eliminating the cashless bail policy,” said Jenkins.
The rubrics behind the cashless bail system
Cashless bail represents policies enacted in D.C. and in states that include New Jersey, New York, New Mexico and Illinois –the first state to adopt such a policy and the only one that has enacted a fully cashless bail policy. The system of reform allows people to be released from jail without paying any money while they await trial and is an alternative to the traditional cash bail system in which people pay money to be released and get their money back if they return to court for their assigned date.
Trump’s executive gives D.C. and states 30 days to adhere to his demands or face financial repercussions.
Jenkins said while D.C. has fewer options as it lacks state sovereignty, he anticipates a flurry of litigation to come from states who currently have a form of cashless bail and have found it to be beneficial to their citizens.
“I cannot begin to explain the president’s logic used to support his policy position, but there’s no statistical or empirical data that confirms his allegations,” Jenkins said. “There’s no data which suggests that if you’re poor or from a marginalized community, that you are any more likely to violate pretrial conditions than one who is either wealthy or has more financial resources.”
It’s about risk of flight or reasonable danger to the community, not about one’s financial position,” he added.
Jenkins also asserted that judges remain the most qualified individuals to determine if cashless bail should be extended to a person accused of a crime, not the president.
“Judges are empowered to impose secured bonds if they believe the situation warrants it,” he said. “Using the power of executive order to dictate judiciary standards borders on being unconstitutional. I predict that judges will make that known and that we will soon see a lot of cases brought to courts across America.”
American Bar Association’s Criminal Justice Section calls move a threat on democracy
“What we’re seeing is a threat on both Home Rule in D.C. and on democracy across the nation,” said Melba Pearson, the newly appointed chair for the American Bar Association’s Criminal Justice Section.
“The concept of home rule is simple and makes total sense because it acknowledges that those in a community or geographic location elect government officials who are closest to the problems they face,” Pearson said. “We have the separation of federal and local governments for obvious reasons. But in recent years, we’ve seen a shift toward autocracy which says do what ‘we’ say, or we will find a way to destroy you.
“If you look at dictators in places like Russia, Syria, Venezuela or Iraq, their playbook is essentially the same: attack the press, silence or fire dissenting voices and bully or intimidate people instead of allowing for a robust discussion,” Pearson said. “The president’s latest executive orders are incredibly dangerous to our democracy because he has promised to bully local governments who do not follow his wishes, even if his policies are not in the best interests of local communities.”
Pearson believes if the president in office is a Republican or a Democrat.
“We’re seeing a shift toward policies that are both dangerous and anti-democratic,” she said. “It’s a horrible precedent and something which no American should support or should accept to see coming out of the White House.”
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