When police encountered George Floyd, they unknowingly met someone who had lost his restaurant job amid a pandemic-triggered shutdown and suffered from many preexisting medical conditions. We don’t know if Floyd would have survived the arrest if he were perfectly healthy, but we know that being poor is a disadvantage in the justice system and that incarceration exacerbates health outcomes for those with preexisting conditions.
In addition to determining criminal or civil liability stemming from such incidents, we must also reexamine the framework for best practices from arrest to incarceration. Meeting that challenge requires insisting upon the universal rule of law while also aspiring to procedures throughout the system that are devised with the most vulnerable in mind.
The need to account for individual vulnerabilities stems from government imposition of power and its implications for life and liberty that are inherent at every step in the justice system. As a nation built on free enterprise, we rightly celebrate those who rise to the top through competition that incentivizes excellence. A meritocracy in academia, industry, or professional sports theoretically rewards those who meet the highest standards, but there is no constitutional right to be a professor, a corporate executive, or a star athlete. There is, however, a constitutional and moral imperative to avoid imposing the awesome power of the government in a way that disadvantages the most vulnerable.
We can meet this imperative while upholding the fundamental principle that the same laws must be applied to all regardless of race, socioeconomic status, or other characteristics. A Socialist Seattle City Council member suggested looting should not be discouraged, wrongly implying that other injustices somehow justify exempting some individuals from the prohibition against theft in every civilized society. Fortunately, we can unite around combining universal laws with processes and institutions designed around the most vulnerable.
At the front end, this means reforming bail so that defendants who are poor stand as good a chance of being released prior to jail as those who are wealthy. Predetermined bail schedules are the antithesis of this, as they guarantee different outcomes based on wealth. Responsible bail reform considers objective assessments that prioritize public safety. It also empowers courts to deny bail to the most dangerous defendants regardless of how much money they have while ensuring no one remains in jail simply because they cannot afford a specified bail amount.
Additionally, indigent defense must be strengthened so those with less income receive competent representation when up against the vast resources of the state. Models such as participatory or holistic defense and client choice that provide fidelity to the client and independence from the court result in the best outcomes.
Even as we apply the same law to all defendants, sentencing presents another opportunity to balance the scales of justice to account for individualized factors. For example, judges and juries should consider if a defendant’s conduct was influenced by exposure to violence or other trauma, such as in cases involving defendants who are victims of human trafficking. This already happens routinely in veteran’s courts where PTSD and other scars of battle are accounted for.
Further down the line, when someone is placed on probation, we must consider his or her ability to pay fees. Failure to pay remains one reason people on probation are revoked to prison. Instead, success should be determined by their performance in following the law and conditions related to public safety.
For those who are incarcerated, jails and prisons must also be designed to serve those who are vulnerable and have few resources. Fortunately, many jurisdictions have taken steps in this regard. For example, earlier this year Dallas County capped rates for phone calls so even those who are indigent can keep in touch with family. Maintaining these connections lowers recidivism rates.
Some states have addressed another type of vulnerability by adopting laws that provide dignity for pregnant women. Earlier this year, South Carolina banned shackling of pregnant women and Louisiana prohibited solitary confinement for pregnant women absent exigent circumstances. Moreover, Texas Gov. Greg Abbott created a clemency process for incarcerated victims of human trafficking and domestic violence.
Now, many jurisdictions are expediting the release of elderly and sick individuals who have been assessed as no peril to public safety, a policy that made sense even before COVID-19.
Even as we maintain the fundamental tenet that one set of laws must be applied to all, our legal institutions and processes must avoid a cookie-cutter approach. We cannot pretend that people enter and navigate the system with the same resources. To avoid the equivalent of a marathon in which everyone begins at a different place, the system’s machinery must be rewired with the most vulnerable in mind. In short, the universal rule of law and individually tailored procedures can combine to produce both justice and safety.