Killing Draco: Is it time to get rid of bail?

One thing that's made the 2010s an interesting time to be alive is that we live in an era when many people are re-thinking...well, just about everything. Certainly here at home, policies that had unquestioned support during the 1980s and '90s -- I'm talking about the "war on drugs," militarized police, and the massive flow of wealth to the top 1 Percent -- are getting a much-deserved second look. In many ways, a common thread is an approach to law-and-order that is draconian and unyieldingly harsh, policies that gained momentum after the unrest that peaked in the '60s and early '70s. Most prosecutors and many judges across the country are elected, and no one dared risk the label of "soft on crime."

But the criminal justice system isn't a one-directional game. There is always tension between the need to punish wrongdoing, both in the name of justice and of deterrence, and the rights of the accused, between what "feels good" in the heat of the moment and what achieves the supposed real goal of keeping people safer. At least there used to be.

On the long list of things that Americans rarely question is bail. Occasionally, a prisoner is held on terms that seem a bit extreme -- in Baltimore, a rioter accused of smashing a police cruiser had higher bail than the cop charged with the death of a human being, Freddie Gray -- but that scrutiny is rare.. Now comes a provocative piece about bail that asks, basically: Why exactly do we have this?

Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?

Usually, it is because they cannot afford bail. According to a 2011 report by the city's Independent Budget Office, 79 percent of pretrial detainees were sent to Rikers because they couldn't post bail right away.

This is a national problem. Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can't pay their bail.

In other words, we are locking people up for being poor. This is unjust. We should abolish monetary bail outright.

Right now, you're probably asking the same questions I asked when I first read this New York Times piece by Maya Schenwar author of a recent book on prison reform. Won't people not show up for trial? What is they commit a crime while waiting for their case? Schenwar claims that Washington. D.C., has mostly abolished monetary bail, with no major problems. Certainly, this seems like an idea that can be phased in on an experimental basis, starting with non-violent offenders.

Will it happen in many places? It's hard to imagine, even in a more radical time like today. As we've seen frequently in the so-called "war on terror," just the threat of one terrible thing can lead to sweeping policies that are wrongheaded at best, illegal at worst. I headlined this piece "Killing Draco" in honor of the 7th-Century BC lawgiver who gave us the word "draconian" by inventing the debtors' prison (which we still have 28 centuries later!) and by mandating the death penalty for low-level crimes like stealing a cabbage.

Today, we don't allow the state to kill people for stealing a cabbage, because we think we're better than that. So why aren't we better than excessive bail, a system that costs the taxpayers a fortune in incarceration costs and makes a mockery of the concept of "innocent until proven guilty"?

Would you at least think about it?