The following are quotes from Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System by Alec Karakatsanis [Brackets surround footnote numbers from the text.]
Here's an interview with the author:
p. 8-9
Instead of shackling one hundred percent of the detained children, they now shackle only about twenty percent of the detained children....
Brutality like this feels normal to many people who work in the punishment bureaucracy and to many people in our society-so normal that we can inflict it on a massive scale without needing any justification. This desensitization has led to a remarkable lack of intellectual rigor in every corner of the punishment bureaucracy: almost no one carrying out punishment in our legal system has any clue about whether what they are doing is leading to any good. They don't even know, for example, if locking people in jail cells actually increases or decreases the frequency of things that they call "crimes"-and a lot of evidence suggests that it makes communities less safe.
They lack the most basic data, evidence, or rational explanations that one would expect from people before they cage millions of human beings in frightening conditions and separate tens of millions of families. The essays in this book explore how bureaucrats in the punishment system have allowed themselves to become desensitized to things that should shock them to the core.
p. 14-15
[Defendant] Sharnalle ...owed the city money for old traffic tickets. The city had privatized the collection of her debts to a for profit "probation company," which had sought a warrant for her arrest. I happened to be sitting in the courtroom on the morning that Sharnalle was brought to court, along with dozens of other people who had been jailed because they owed the city money. The judge demanded that Sharnalle pay or stay in jail. If she could not pay, she would be kept in a cage until she "sat out" her debts at $50 per day, or at $75 per day if she agreed to clean the courthouse bathrooms and the feces, blood, and mucus from the jail walls. An hour later, in a windowless cell, Sharnalle told me that a jail guard had given her a pencil, and she showed me the crumpled court document on the back of which she had calculated how many more weeks of forced labor separated her from her children. That day, she became my first client as a civil rights lawyer.
II
Prisons do not disappear social problems, they disappear human beings. -Angela Davis
There are 2.2 million human beings confined in prison and jail cells in the United States tonight[4] About 500,000 of those people are presumptively innocent people awaiting trial[5], the vast majority of whom are confined by the government solely because they cannot pay enough money to buy their release.[6] This country has five percent of the world's population,, but twenty-five percent of the world's prisoners-the highest rate of human caging of any society in the recorded history of the modern world.[7] At least another 4.5 million people are under government control through probation and parole "supervision."[8]
Between eighty and ninety percent of the people charged with crimes are so poor that they cannot afford a lawyer.[9] Twenty-five years into America's incarceration boom, black people were incarcerated at a rate six times that of South Africa during apartheid.[10] The incarceration rate for black people in the nation's capital, where I live, is nineteen times that of white people.[11]
I have traveled the country and seen nearly identical practices in every courtroom and every jail that I have visited.
IV
Official language smitheryed to sanction ignorance and preserve privilege is a suit of armor polished to shocking glitter . ... It is the language that drinks blood . .. . -Toni Morrison[13]
The emerging "criminal justice reform" consensus is superficial and deceptive. It is superficial because most proposed "reforms" would still leave the United States as the greatest incarcerator in the world. It is deceptive because those who want largely to preserve the current punishment bureaucracy-by making just enough tweaks to protect its perceived legitimacy-must obfuscate the difference between changes that will transform the system and tweaks that will curb only its most grotesque flourishes.
Nearly every prominent national politician and the vast majority of state and local officials talking and tweeting about "criminal justice reform" are, with varying levels of awareness and sophistication, furthering this deception. These "reform"-advancing bureaucrats are co-opting a movement toward profound change by convincing the public that the "law enforcement" system as we know it can operate in an objective, effective, and fair way based on the "rule of law." These punishment bureaucrats are dangerous because, in order to preserve the human caging apparatus that they control, they must disguise at the deepest level its core functions. As a result, they focus public conversation on the margins of the problem without confronting the structural issues at its heart. Theirs is the language that drinks blood.
It's useful to think about "criminal justice reform" by focusing on the concepts of "law enforcement" and the "rule of law." Both are invoked as central features of the American criminal system. For many prominent people advocating "reform," the punishment bureaucracy as we know it is the inevitable result of"law enforcement" responding to people "breaking the law." To them, the human caging bureaucracy is consistent with, and even required by, the "rule of law." This worldview-that the punishment bureaucracy is an attempt to promote social well being and human flourishing under a dispassionate system of laws-shapes their ideas about how to "fix" the system.
But few ideas have caused more harm in our criminal system than the belief that America is governed by a neutral "rule of law." The content of our criminal laws...and how those laws are carried out...are choices that reflect power. The common understanding of the "rule of law" and the widely accepted use of the term "law enforcement" to describe the process by which those in power accomplish unprecedented human caging are both delusions critical to justifying the punishment bureaucracy. This is why it is important to understand how they distort the truth.
p.18-19
V
We are living in the era of premeditation and the perfect crime. Our criminals . .. have a perfect alibi: philosophy, which can be used for any purpose-even for transforming murderers into judges. -Albert Camus[14]
What is a crime? The first step to understanding how we accomplish the imprisonment of millions of people's bodies is understanding what laws authorize government agents to take away a person's liberty.
A society makes choices about what acts or omissions to render worthy of different kinds of punishment. The decision to make something punishable by human caging authorizes the government to treat people in ways that otherwise would be abhorrent. For example, a person walking down the street smoking a cigarette cannot be searched by police. Even a police demand to stop walking or the probe of an officer's hand along the person's outer clothing would violate our Constitution's Bill of Rights. [15] But, in most of the country for the past fifty years, if that same person were smoking a cigarette containing a dried marijuana plant in addition to a dried tobacco plant, the person may be bound in metal chains, removed from the street, strip searched, placed in a cage, and held in solitary confinement with no human contact or naturallight.[16] The person can be kept in that cage for decades. [17] The person can lose her right to vote, be removed from public housing and have her family removed from public housing, be kicked out of school, and be barred from employment.[18] She can also be deprived of basic human needs, such as hugging her child or having a sexual relationship with her spouse. [19] All of this treatment is allowed only because the person is a "criminal."
Criminal Laws Reflect and Legitimate the
Environment in Which They Are Made
Choices about what is a crime and what is not are made by politicians and within the economic, social, and racial systems in which politicians exist. As a result, for better or worse, these choices reflect the logic of, promote the legitimacy of, and protect distributions of power within those systems
p. 20-21
Consider, for example, that it is a "crime" in most of America for the poor to wager in the streets over dice. Wagering over international currencies, entire cities' worth of mortgages, the global supply of wheat needed to avoid mass starvation, [20] or ownership of public corporations is accepted behavior. [21] Dice wagerers become bodies to seize, search, confine, and shun. [22] Their private cash is "forfeited" to government ownership.[23] Wheat-wagerers become names on the wings of hospitals and museum galleries. Their cash makes them heroes, and charitable organizations providing legal services to low-income dicewagerers in criminal prosecutions give them philanthropic awards at banquets.
This example is not a quirky outlier. Furthering and legitimating particular distributions of wealth and power are pervasive, defining functions of our criminal legal system-not minor, unintended byproducts.
These choices play out over the criminal law, from foundational laws criminalizing a physical breach of another person's private property to definitions of affirmative defenses like duress or necessity. (Poverty, for example, is not commonly accepted by American courts as a sufficient excuse for theft of subsistence goods.)[24] Our political choices answer questions like: Should it be a crime to beg for money? To charge high interest rates? To hoard wealth? To decide not to vote? To abuse a family dog? To abuse thousands of pigs to make higher profits from their flesh? To belong to a union? To decline to belong to a union? To refuse to grant mortgages to people of a certain race? To drill for oil? To seize land from indigenous people? To participate in a lynch mob? To enslave people? To refuse to pay reparations to people formerly enslaved on one's land? To spray carcinogenic chemicals into the ground to release natural gas? To hit one's child? To design political boundaries based on race? To run a bank for profit? To refuse to identify oneself to a police officer? To force sex upon a spouse? To search a person without probable cause? To grow tobacco? To have oral sex with another consenting adult? To hold profits offshore? To expose secret government misdeeds in the media? To dress a certain way? To possess a gun? To possess a hunting rifle ten years after a marijuana conviction? To donate to a foreign charity? To boycott apartheid? To terminate a pregnancy? To cross an imaginary boundary between two political jurisdictions to be reunited with one's child?
The standard narrative portrays "criminals" as a vast collection of individuals who have each made a choice to "break the law." Convictions and punishments are consequences that flow naturally from that bad choice: we must enforce the "rule of law." But these crimes are not chosen because of some assessment of the amount of harm prevented, and punishments are not selected because of demonstrated penological success. The difference in the way the bureaucracy treats someone using cocaine and someone using vodka has no empirical connection to the respective harm caused by those substances or to any analysis of how to prevent addiction to them. Instead, forces external to well-reasoned policy contribute to definitions of criminality and to decisions about appropriate punishment. The criminal law is not an inviolate repository of right and wrong, but-just like any other policy fashioned in a country as unequal as ours-a tool related to cultural, racial, and economic features of our society. [25]
p.32-33
...look at how our society has chosen to deal with a variety of other evils. One can be sued for racial discrimination or sexual harassment at work, for instance, but one cannot typically be prosecuted for that conduct, even though it might cause a lot of harm. The political system has chosen to pursue these other important goals without resort to the criminal system. Even assuming that preventing private individuals from choosing to ingest certain non-alcohol and non-tobacco drugs can create a compelling state interest-a proposition that would take its own justification-a variety of other alternatives to human caging exist to reduce drug use: education, employment, companionship, after-school art and theater programs, medical and mental health care, addiction treatment, and stable housing, to name a few. No government in any jurisdiction in the United States has proven that human caging is a way to reduce drug use at all, let alone the least intrusive way. Instead, a mountain of evidence suggests that the punishment approach to drugs has actually increased drug use and the harms associated with it, including by diverting funds from evidence-based alternatives. [65]
The pathology through which people who call themselves "law enforcement" officials have come to acquiesce in this punishment is revealing. It would be intolerable to our legal system for a person to spend a moment in a cage for cocaine possession if the person did not possess cocaine. But many "rule of law" proponents care nothing for the question: why is it tolerable for a person to spend a moment in a cage when they have possessed cocaine? To answer that question, we would need to ask a further question: is human caging the best way, or even a reasonable way, to minimize the harms that cocaine possession causes?
Thus we have a central paradox of American criminal law: in order to put a person in prison, we have to prove by overwhelming evidence that she merits punishment in a narrow factual sense; but in order to put millions of people in prison, we do not need to show that doing so would do any good. Under the unspoken consensus of the "rule of law," a law authorizing millions of people to be caged for certain conduct will be enforced so long as there is a "rational basis" for it-and the courts define "rational basis" to mean any potential reason, no matter how unpersuasive, and even if it was not the actual reason for the law. [66] This is almost the exact opposite of the "beyond a reasonable doubt" approach that we are told the Constitution requires for taking away bodily liberty. In the latter, a person must not be caged so long as there could be a single reason to doubt her factual eligibility for incarceration.
p. 40 - 41
One is punished because one breaks the law. "Law enforcement" officials exist not to pursue political, racial, and economic goals through strategic choices, but neutrally to administer mutually agreed-upon rules for everyone's benefit. This conventional story is wrong.
"Law Enforcement" Is About Making Choices
Our apologies good friends
for tbe fracture of good order
the burning of paper instead of children . ..-Father Daniel Berrigan[88]
Government employees called "prosecutors" decide the people against whom to initiate the state's machinery of physical force. Prosecutors have nearly unlimited authority to decide who to charge with a crime and how harsh a punishment to pursue for it. [89]
Prosecutors make decisions about what crimes to investigate,[90] what crimes to ignore, whether to file charges in any particular case of lawbreaking, whether to seek pretrial detention, whether to seek mandatory minimum prison sentences, whether to permit a plea bargain, and how severe a punishment to seek, including whether to seek the death penalty, life in prison, decades in prison, probation, or diversion from punishment entirely. Because courts have removed themselves from this process and because there is typically no independent oversight of prosecutors, there is effectively no check on the exercise of American prosecutorial power.[91] And in most jurisdictions, there is no mechanism for the public to initiate an independent prosecution.
This power is executed with little fanfare thousands of times every day as prosecutors decide which arrests to convert into prosecutions. In many jurisdictions, large percentages of arrests never end up in prosecution.[92]
Prosecutorial discretion exists all around us. It floats in the ether, largely unnoticed, because the vast majority of its exercise lies in the body of human behavior that prosecutors choose to ignore. Examining virtually any set of prosecutorial actions illustrates that they are political choices.
p.41-42
It is now known that U.S. government employees committed the crime of torture during what they called the "war on terror." [93] That widespread torture occurred and that it constituted a federal crime is not in dispute. The torture of human beings included, at least as far as we know: physical beatings,[94] anal rape,[95] mutilation of genitals,[96] electric shocks to the body,[97] waterboarding [98] (a crime for which the United States previously prosecuted foreign soldiers[99]), chaining people naked to walls in freezing temperatures until they died, [100] hanging people by their arms until it appeared that their shoulders would break,[101] locking a person in a box with insects,[102] forcing people to remain awake for eleven straight days, [103] and other physical and psychological tactics designed to inflict pain so severe that the inability to bear that pain would lead to people providing information.[104] Many people were killed by government employees during these torture sessions-federal prosecutors knew of at least one hundred such deaths. [105] The details of these crimes and the surrounding criminal conspiracy are set forth in the findings of every public military, civilian, and international investigation conducted, and they are found in the admissions of the torturers themselves.[106] Moreover, no one disputes that further crimes were committed when the CIA destroyed videotapes documenting its employees torturing people.[107]
No person was prosecuted for torture, murder, or for destroying the videos of government employees committing these crimes. [108] Prosecutors chose instead to ignore these violations of federal criminal law.[109] The official prosecutorial reason for the decision not to prosecute these crimes was that we must "look forward, not backward."[110] This is a philosophy of prosecution that every convicted person confined in jails and prisons would love to embrace: every person prosecuted in an American courtroom is charged with committing a crime in the past.
The only person who federal prosecutors used their discretion to prosecute for his role in the torture program was John Kiriakou, a high-level CIA official formerly in charge of the CIA's covert operations.[111] Kiriakou was not prosecuted for torture or for destroying the videos of torture. Instead, Kiriakou's crime was revealing details about the torture to the public, a violation of the rules against disclosure of information the bureaucrats choose to make secret. [112]
p.52-53
- As alleged in a lawsuit that my organization recently filed, prosecutors in Phoenix have been making false statements in letters to coerce people into paying the District Attorney's office to get it to drop marijuana possession charges in a scheme that has earned the District Attorney's office an average of $1.6 million annually in recent years. [194] This is, paradoxically, both the federal felony of mail fraud and "law enforcement." These prosecutors have not been prosecuted.
- California took away 4.2 million drivers' licenses because people could not pay court debts.[195] In the past five years, Tennessee took away more than 250,000 licenses for inability to pay tickets and more than 140,000 licenses for inability to pay other court debts.[196] Because dozens of states have done the same thing, millions more people have lost the ability to do all of the things many of us take for granted in life--go to the grocery store, attend church, commute to work, and visit family--as "driving on a suspended license" has become one of the most common ly charged crimes by prosecutors in many jurisdictions.[197] In such circumstances, that crime serves no function other than to criminalize poverty.
- According to an investigation by the District Attorney and the Louisiana State Auditor, judges in New Orleans were extorting money from people, wrongfully jailing people who could not pay, and then illegally using the money to fund their own benefits packages.[198] Despite these investigations and later admissions by judges, prosectors used their discretion not to prosecute the judges.
- Jail guards in Florida locked a man with mental illness in a shower, turned on scalding hot water, laughed at him, and left him there until he died. Prosecutors chose not to prosecute the guards.[199]
- General David Petraeus was prosecuted for disclosing classified information to a journalist with whom he was having a sexual affair. Although the information Petraeus disclosed included some of what the U.S. government considers to be its most sensitive secrets--more sensitive than the information disclosed by Chelsea Manning,[200] for example--prosecutors permitted him to plead guilty to a misdemeanor and to avoid any time in jail[201]
- Twelve police officers in Miami Beach shot over one hundred bullets at a car, killing the man inside. The officers also pointed their guns at witnesses, demanding that they stop filming. Police then confiscated and smashed the cell phones of witnesses to the shooting. The officers then lied, c!aiming that they had not tried to destroy the witnesses' videos of the incident. However, one witness had removed and hidden his phone's memory card in his mouth, and the video given to CNN confirmed the officers' crimes and lies. [202] The officers were not prosecuted.
- Sentencing children to die in prison is illegal in nearly every country in the world, but as of 2012, the United States had over 2,500 people serving sentences to die in prison for crimes committed as children because prosecutors chose to seek life sentences in adult prison. [203]
p. 62-63
Police officers on city streets have discretion to stop, arrest, or ignore people engaged in a wide variety of conduct and misconduct. Higher-level officials, by deciding geographic placement of officers, drafting department budgets, and setting prosecution priorities, have the ability to ignore lawbreaking in entire neighborhoods or economic sectors. For that reason, the "radical" future of prison and police abolition sought by some on the political left and right effectively already exists for wide swaths of our society: wealthy white people rarely interact with the police, except by choice.
The discretionary exercise of these powers means the opposite for the poor and people of color. What has emerged for them is a metastasized system guided by forces we don't acknowledge as opposed to good policy made transparently to promote shared values.
A major achievement of the punishment bureaucracy is that it has retained mainstream respect even though its "law enforcement" choices crush unprecedented numbers of people with no evidence of any unique social benefit while simultaneously allowing enormous amounts of lawlessness that cause massive harm. Why are these choices still viewed as legitimate?
First, the groups who wield power in our society benefit from the punishment bureaucracy. It privileges their private property, their racial supremacy, their jobs, their voting rights, and their segregated neighborhoods.
Second, the growth of the punishment bureaucracy itself. changes our culture and economy. As the bureaucracy expands, it employs larger and larger numbers of police officers, prosecutors, probation officers, defense attorneys, prison guards, contractors, and equipment manufacturers. People working in the system become dependent on its perpetuation for their livelihoods and even their identities. The path of least resistance is to grow more. Jobs are created, local political power is consolidated, and "law enforcement" activities are normalized and then rendered economically essential-such as roadblocks, prison guards, home raids, drug interdiction teams, neighborhood patrols, armed police in schools, SWAT teams, stop-and-frisk practices, social media monitoring, video surveillance, probation drug testing, and "intelligence" divisions. An everexpanding set of "criminal justice" products are designed and advertised with billions of dollars from investors and tens of thousands more people involved at every stage of their production and marketing, trade conventions displaying the latest products, and lucrative bureaucrat training schools follow, [242] along with new protocols for using the new products and training methods on those new protocols, and so on. [243] Soon, an entire society is prepared psychologically and institutionally to confront a public health issue like drug addiction with metal shackles, tasers, and cages.
p.68-69
To accomplish the "rule of law" trickery, the punishment bureaucracy makes pronouncements about what "crime" is, why people commit crime, and how best to reduce crime by "enforcing the law." The power of this worldview cannot be underestimated: it has won almost every relevant policy debate in the past forty years. It convinced a broad range of people that the solutions to their problems were not changes to the political system or the economic structure or discriminatory social norms, but rather, more police "on the streets" and more poor black people in prison cages.
The "law enforcement" myth is seductive. Many people, including lawyers and judges, want to believe that something like the neutral "rule of law" can exist, and for good reasons. But it is dangerous to do so without understanding that policing and prosecution are used as a tool of politics and power to benefit some and to hurt others.
One of the most insidious notions pervading standard discourse is that people are investigated and punished because they break laws and therefore that, if one breaks the law, one will be investigated and punished. This principle supports a larger idea: our legal system is objective, trying its best to promote well-being, morality, and human flourishing. The myth that an objective "rule of law" determines the outcomes is important to the system's perceived legitimacy and to our acceptance of its authority over us.
A lot of assumptions are imbedded in the everyday assessment of the punishment bureaucracy's legitimacy and effectiveness: Poor people and black people fill jails because they do more bad things than wealthy people and white people. American officials are not arrested for war crimes because they slaughtered people and assassinated democratically elected leaders for good reasons. People are pulled over because they violated a traffic rule or frisked because they were suspicious. Teenagers are searched on their way to school because they live in a "high crime" area and their black and brown bodies are dangerous. A person obtained his wealth legitimately because his ancestors were never prosecuted for acquiring it. Prisoners cannot hug their children or see sunlight because jails are places where we could not safely have family visits or fresh air.
The standard "criminal justice" discourse lulls people into abandoning scrutiny of their assumptions. Government employees who arrest and prosecute people are called "law enforcement" agents; the entire enterprise is referred to in press conferences as an objective entity: "from a law enforcement perspective ... " or "law enforcement believes that ... " As we have seen, it would be more accurate to refer to them as "selective enforcement officers" or "white wealth preservation officers" because they usually enforce only some laws against some people. [263] Many of the most prominent mass violations of American law were perpetrated or covered up by "law enforcement" officers acting pursuant to official policies, including the Trail of Tears, the ethnic cleansing and forced deportation of more than a million Americans for suspected Mexican heritage,[264] the internment of Japanese Americans, and the arming of right-wing Nicaraguan death squads and the perjury surrounding it. [265]
p.72-73
The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum-even encourage the more critical and dissident views. That gives people the sense that there's free thinking going on, while all the time the presuppositions of the system are being reinforced by the limits put on the range of the debate. -Noam Chomsky [279]
Powerful systems have a way of shapeshifting. By some measures, we have more segregation in schools since 1968 even though courts declared that de jure school segregation is illegal.[280] A push to "reform" federal sentencing laws in the 1980s, ostensibly to reduce judicial bias, increased punishment severity across the board.[281] A "bail reform" campaign in the 1960s to eliminate the use of cash bail in federal courts to jail the poor resulted in a system in which the rate of pretrial detention of presumptively innocent people went up.[282] Although the Supreme Court has said that pretrial liberty must be the "norm" and pretrial detention the "carefully limited exception"[283] over seventy-two percent of federal criminal defendants are now confined to jail cells for the entire duration of their prosecution. [284]
And so we find ourselves in a dangerous time. There is broad awareness of the senselessness of the punishment system and a movement of people organizing to dismantle it. But the forces that made the punishment bureaucracy are aligning to shape how it is "reformed." The recognition of the system's unfairness and ineffectiveness has reached such a tipping point that some kind of change must happen in order for the system to preserve its own legitimacy. Accordingly, mass incarceration bureaucrats are looking to become the face of what they call "criminal justice reform." Their success will depend on whether people can tell the difference.
p.87
It is remarkable how little these [recently elected "progressive"] prosecutors have tried to do so far considering that we would need eighty percent reductions in human caging to return to historical U.S. levels and to those of other comparable countries.[345] None of them have reported reducing prosecutions by more than a few percentage points, and most of them have not reported any reductions at all. None of them are calling for smaller prosecutor offices or fewer police. None of them are seeking a massive shift in investigative resources away from investigating the crimes of the poor to investigating the crimes of the rich. None of them have prosecuted a single one of their own employees for withholding evidence or obstruction of justice. None of them have announced a policy of declining to prosecute all drug posession. None of them have stopped prosecuting children as adults. None of them have sought to eliminate fines and fees for the indigent. None of them have opened a systemic civil rights investigation into the brutality, neglect, and crimes against confined people that are rampant in their local jails. None of them have set up a truth and reconciliation commission to confront the past racism and barbarism of their offices and local police. None of them have taken serious steps to transition their approach to a restorative justice model.
p. 156-157
Consider a few of the many examples:
- Although the law promises indigent defendants a zealous attorney, the system almost entirely ignores that right in practice. Every serious observer recognizes an indigent defense "crisis" in which most of the millions of American criminal defendants each year receive barely any individualized representation at all, let alone a zealous investigation into and presentation of the questions relevant to their factual guilt and mitigation of punishment.[33] On recent trips to Tennessee, Alabama, and Missouri, for example, I saw hundreds of defendants in minor misdemeanor cases plead guilty without a lawyer just so that they could finally get out of jail after weeks in a cage because they were too poor to pay for their release pending trial, and I saw judges routinely inform jailed individuals that they would refuse to give them a court-appointed lawyer if their families were able to pay a private for-profit bail corporation to have them released from jail. Local public defenders reported to me that there was often little that they could do anyway even if they were appointed to a person's case, given that they had between one thousand and two thousand cases per year and barely any investigative resources.
- In a system that guarantees the right to trial unless the right is waived "knowingly, intelligently, and voluntarily," over ninety percent of all defendants plead guilty[34] because they are told that they will be given more serious punishment if they do not plead guilty.
- Although our legal system proclaims that "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,"[35] several hundred thousand human beings are kept in American cages every single day solely because they are too poor to make a monetary payment to secure their pretrial release.[36]
