Kyle Rittenhouse is the best evidence yet that America’s bail system is busted

Kyle Rittenhouse doesn’t regret taking an AR-15 rifle to an emotionally charged protest in Kenosha, Wisconsin, earlier this year. The teen reportedly used his coronavirus relief check to purchase the firearm.

Rittenhouse insists that his intent was to help protect local businesses from looting demonstrators. The result: two protestors shot dead and one injured.

Pending trial, Rittenhouse managed to raise $2 million for his cash-bail release from supporters online who champion him as a patriot and protector, despite the seriousness of his charges.

Compare that with the case of Oklahoma County jail inmate Clarence Merrell who died in August while awaiting trial after testing positive for COVID-19. The 64-year-old Merrell was arrested on numerous drug offenses. But no court had proven him guilty of a crime when his death occurred.

The conservative Oklahoma Council of Public Affairs (OCPA) think tank now points to Merrell’s death as an illustration of just how desperately bail reform is needed here in Oklahoma and everywhere in the nation.

Merrell was one of the 80 percent of people at any given time who are being held in local jails without being convicted of a crime. Such statistics have made the $2 million cash-bail release of accused killer Kyle Rittenhouse a flashpoint for debate.

How can one person accused of murder go free for the right price while another dies in jail on drug charges before getting his day in court?

People are sent to local jails over 10 million times each year. At any hour of the day, hundreds of thousands of people are in jail awaiting trials and hearings or serving out short sentences for minor crimes.

Bail is used to ensure that people accused of crimes will show up for future court dates. But not everyone can afford it. Most people in jail, who have not been convicted, are there because they couldn’t afford bail or a bail company refused to post bond for them.

Calls for Fairness and Reform

A national bond reform movement was underway long before the news of Kyle Rittenhouse’s crowdfunded bail. Criminal justice scholars have shown for years that people of color are handed higher bail amounts than their white counterparts for similar offenses.

Rittenhouse’s release stands in stark contrast to a similar high-profile case involving another teen, Kalief Browder. 17-year-old Browder spent three years awaiting trial – two in solitary confinement – at New York’s notorious Rikers Island jail. He’d allegedly stolen a backpack. The experience led him to commit suicide.

In Oklahoma, which has one of the highest incarceration rates in the nation, the problem is just as acute. Researchers with the nonprofit Vera Institute for Justice studied Oklahoma County’s bail system in 2016. They found that one in four inmates were being held for minor traffic and municipal offenses, such as not having a driver’s license and public drunkenness.

Studies have shown that cash bail disproportionately affects poor people. The Oklahoma chapter of the American Civil Liberties Union points to a typical case in 2019 involving one of their clients, Jermaine Bradford. At a hearing in Canadian County for misdemeanor charges, Bradford was held on $2,000 bail. He didn’t have even the $200 a private bond company would require. “The judge did not let Jermaine ask any questions,” the Oklahoma ACLU wrote online about the case. “ … The whole encounter lasted less than three minutes.”

Reform Attempts are Blocked

Changing the bail system in Oklahoma is fraught with political barriers.

One reform attempt arrived via Senate Bill 252 during the 2019 State Legislative Session. SB 252 was supported by the leading liberal and conservative think tanks in Oklahoma who argued it could have saved millions in taxpayer money and untold grief from unnecessary jail terms.

Authors of the bill wanted to grow the use of so-called “recognizance bonds” as an alternative to costly cash bail. This would allow non-violent defendants forgo cash bail and instead vow to return to court for future hearings. Judges would make recognizance bond determinations based on criminal history and other factors.

But bail bond companies and law enforcement agencies lobbied successfully against SB 252.

Without such reforms, jail wait times (time in jail before a trial occurs) can vary dramatically from weeks to months depending on the county. The average jail time in Tulsa is about 30 days and over two months in Oklahoma County. In Rogers County, the wait is as long as six months. Even if you can afford a private bond agent, you may still be shelling out a small fortune before the government has convicted you of any crime.

A Broken System

Everyone has a constitutionally protected right to tell their side of the story in court. But not being able to afford bail makes defending yourself from jail more challenging. It means prosecutors have more power to pressure you into a plea bargain.

And as the Oklahoma Council of Public Affairs wrote recently in a post about Clarence Merrell, it can mean a death sentence in the era of COVID-19.

“No matter how you feel about drug crimes or (Clarence) Merrell personally, we should all agree that his offense didn’t justify the death penalty.”

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