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The saving grace of our justice system is that remarkable axiom, innocent until proven guilty. Be that as it may, each accused must place his head in the lion’s mouth. For not every axiom is honored, not every proof is infallible—and not all defendants are innocent. What will the judgment be? Yesterday, a man pursued his good or evil life. Today he stands inscribed in the master calendar of felonies. And tomorrow’s destiny refuses to announce itself. The sign reads: SILENCE: COURT IN SESSION. Thus authority reduces us to things, and how could matters be otherwise? A greyhaired, slender defendant, sitting beside me as he awaits his turn, whirls insanely round in his chair as if something bit him. Granted, he keeps obediently silent; chewing his lip, he struggles to sit still, but only a moment goes by before his demon, premonition of the lion’s mouth, gnaws at him again, and he quivers. Meanwhile, a hulking, bandaged, cornrowed defendant approaches the bench with his hands locked behind his back. He’s been named; he’s Line Twenty-Four. Should he refuse to offer his head to the gaping mouth, then certain fellow citizens, armed and numerous, will force him. But by our axiom, Leo may not bite in advance of a guilty verdict. Fairness, then—to say nothing of kindness—advises that the defendant’s freedom be provisionally restored, on condition that he not run away from the lion. Hold his collateral, then. Should he flee, it will be forfeit. What if, fearing the verdict, he prefers freedom to property of which his sentence might in any event deprive him? No worry—raise the stakes! Then he’ll require help from those who love him, which produces the ingenious result of holding his companions hostage for his good behavior. Unless he’s a monster, instinct will be deterred by the knowledge that should he vanish, his sister will lose her house, while the lion in any case hunts him. And that is why the whirling man and the hulking, cornrowed man sat beside me in the courtroom, waiting for their names to be called. They were not wearing the orange livery of unfreedom; they came in their street clothes. They might as well come. —We get ninety-six percent of all skippers, a bail bondsman in Spokane once boasted to me, with a tight smile. And I suspect that Domino was all too familiar with that statistic.
In our republic, collateral cannot be paid except in good hard money. (The felony bail schedule reads: CASH, SURETY BONDS, VISA OR MASTERCARD. NO PERSONAL CHECKS.) Why this is I cannot fathom. A deed of trust means even less to a court clerk than a defendant’s fate. Well, couldn’t there be an appraisal office for the former as there is for the latter? The state of California seems perfectly able to staff such establishments in order to tax my house. Never mind. Who, then, will accept the surety of a cashless soul? Not the judge, I assure you; nor the happy lawyers with their suitcoats off, neckties fluttering in the breeze, who sometimes may be seen carrying bag lunches, nor yet the cops whose doubleparked police cars rest as immune to meter maids as most cops themselves are to bribery. And so the accused, or, more likely, since he’s at this moment sitting upstairs in a cell, the friends of the accused, descend the Hall of Justice’s steps on which other lion’s-prey smoke cigarettes while keeping to themselves or else glaring nervously everywhere like that whirling man in court, and then the friends (what nice friends!) turn to the slow orange blinking of the BAIL OPEN sign for Barrish Bail Bonds, or to any of the other signals of rescue in that casino-like strip which more or less begins by the Inn Justice Bar & Hofbrau with Dad’s Bail Bonds, and Cable Car Bail Bonds, whose office resembles a fast food restaurant and whose motto reads: “WE NEVER SLEEP”—LOW RATES. Next comes De Soto Bail Bonds, followed by Al Graf Bail Bonds, an establishment which figures in this sketch, then the aforementioned Barrish, Ballestrasse (OPEN 24 HOURS), Puccinelli; and at right angles to all these, in the alley behind Cable Car Bail Bonds, my vision descries Curtis Howard, O’Reilly’s, McKenzie Green, Hutch and Hutch, King, De Cortez and then Sheila Lockett, who very pleasantly said when I rang her bell: No, I can’t help you; I’m sorry . . .
Thus that miniature Las Vegas where many an accused hits the jackpot of sunlight and kisses. But is this treasure imperishable American bullion, or fool’s gold? Bail can be revoked, you know.* On the other hand, some lucky souls’ cases get dismissed within days, and then sunlight endures unto death or the next arrest. Regardless, Judgment Day comes for all. Angels inscribe a name on one of the daily computer printouts affixed to the marble walls of the Hall of Justice—time to report to the lion, time for district attorney and public defender to gamble over the gambler’s fate. But up to that moment he’s free within due limits to spend the life he’s won—provided only (as I said) that his well-wishers can offer deeds of trust, stock certificates, or good safe municipal bonds.
That bail bondsman I met in Spokane didn’t mind accepting videocasette recorders or cameras as collateral. (What did he think, when somebody brought in two dozen television sets? Where had those televisions come from?)—In San Francisco it seems more difficult to meet with such catholic receivers. One can easily try, of course, for it was explained to me by ancient Al Graf, retired owner of the aforesaid Al Graf Bail Bonds, that each bondsman specializes in a very particular subspecies of client, just as each creed has its god, and each parasite its host. Somebody somewhere will take television sets. Why not try? Freedom Casino lies so conveniently situated right across from the lion’s mouth! —When you win in Vegas your slot machine says BAR BAR BAR. But for the lion-bound winners, all bars shall be sprung. A blood-vermillion sign blinks in a bondsman’s window.
Am I free to go? asks the defendant.
Yeah, you’ve got bail set, the judge replies.
I got bailed! he crows, rolling away in his wheelchair.
The judge sighs and sets a new trial date.
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How much do you love me? —Easy to find out. I’ll beseech of you my resurrection. Then I’ll wait.
Ah, but how much will the ransom be? Well, how much should it be?
Gaunt, bald and overworked Ron Albers, one of the felony supervisors at the public defender’s office, tried to be civil, but the more questions I put, the more convinced he grew that I was a fool. To him, life came case by case, like the row of bail establishments each with its own policies; generalization equalled vacuity. I wanted to know whether he thought that the bail system was fair, and such inquiries exasperated him.
Fine, he said staccatto. Take possession of drugs. What’s an appropriate bail?
Well, I began, in relation to a violent crime—
No, he said. Tell me a number.
All right, a thousand dollars.
He shrugged and said (another verbal lunge): Fine. A thousand dollars. How about possession for sale?
Ten thousand.
Fine, he said challengingly. Ten thousand dollars. How about possession with conspiracy to sell?
Twice as much.
Okay, so that’s your system, said Albers a little contemptuously, and maybe it works for you. But nobody agrees, you see. Bail for the same crime varies wildly from county to county.
He was correct, and one need not compare the legal apples of San Francisco with the legal oranges of Sacramento to be unnerved by eccentric discrepancies. What were San Francisco’s judges thinking of, when they set bail for assault with attempt to rape at twenty thousand dollars—the same number as for rape itself? Leniency ought to be the watchword for an uncompleted crime, no matter what reason the ellipsis. Just as Dante’s hell contains circles of graduated misery, so should the bail system. That anomaly, the radiantly rational criminal, ought always to be reminded that no matter what he’s done, he’d be better off not doing worse. Fine, as Ron Albers would have said. Assault with or without penetration, with or without disease and escalated shame: Twenty grand. Fine. Meanwhile, kidnapping for purposes of rape became bailable at fifty thousand dollars. I suppose that carrying off one’s prey is more terrifying than laying hands on her where one finds her, but a courteous kidnapping might be preferable to a bloody assault (granted, the blood might comprise a separately bailable offense, but in that case what meani
ng remains to the word “assault”?). Vanilla kidnapping got bailed at five thousand dollars more than kidnapping for rape, I’ll never comprehend why; and the bail for rape-less assault varied between five and fifty thousand (but take heart, O you suffocating students of logic! We can, do and will, as bureaucrats say, “prioritize”—for it costs precisely three times as much to be suspected of attacking a fireman as to be accused of harming a bus driver. What would they bail me at, if I shattered their legal tablets?). Sexual battery (which essentially means fondling) was only ten thousand—fine, reasonable actually, proportionately Dantesque—but then incest had been priced at twenty-five thousand. If a brother and sister happily went to bed together and then a cousin called the cops, must their amusements necessarily be considered more terrible than ravishment by a monster? Where was the sense of it? And so to me the words on the San Francisco bail schedule—to say nothing of the fees—began to seem like careless and transitory exhalations.
The bitter truth of Ron Albers’s Fine was that in law there was no truth. Sometimes I’ve wished that every crime could be addressed by a single statute, perfectly drafted.* So it used to be: An eye for an eye. But what if I put out my brother’s eye by mistake? What if I did it in wartime, or slyly paid Domino to do it? And so the dust of confusions and exceptions dulled the glitter of the ancient, perfect laws. In their place, we learned to fire multiple laws out of justice’s shotgun, hoping that if one pellet didn’t bring down the criminal, maybe the next one would. Al Capone deserved to go to prison for his numerous murders and thuggeries, and so he did go—but for tax evasion. That was the pellet that got him. The district attorney takes aim and files charges—fires them, I should say—determined to prove his case. He fires multiple shots whenever he can, and each shot spreads constellations of leaden legal pellets. And the more charges stick, the more weighed down becomes the defendant by crushing bail.
This science is as easy as it is repulsive. An example: In Department Twenty-Two I heard a prosecutor insistently arguing: This was a case of GBI (great bodily injury) with use of a knife. The bail was only five thousand, which does not reflect the seriousness of the case!
When I got home I searched the felony bail schedule for San Francisco County and found:
PENAL CODE FELONY 245(a)(I) Assault (great bodily injury) BAIL $5,000
Indeed, if I meant to box in this suspected stabber (as a prosecutor must do), I might insist and argue against ordinary GBI in that same rising voice, for the bail bondsman’s ten percent weighs but five hundred dollars here. Very likely, the accused or his friends could support such a burden. So quick! Load the shotgun! On that very same page I found sweet mayhem. Somebody, possibly our defendant, has superficially cut the victim about the face, and in the process nicked off an infinitesimal portion of an earlobe. Thus mayhem, which is mutilation and bails at twenty grand. (Aggravated mayhem can go for more.) Were I the D.A., why not fire that one off?
This procedure being not only expedient, but also self-exculpatory, it gets applied at all levels. The defendant gets his day in court, and directly or through agents pleads his righteousness. The prosecutor (whose name is Legion, because he gets to call himself the people*) does the same. And the uniformed vice-hunters in their rolling black-and-whites, don’t they also want to justify themselves? When they take somebody in, it’s only human nature for them to show cause. Why not triply show it? —When you’re arrested, said Ron Albers, the person making the charge is the police officer. If he likes you, it’s possession. If not, it’s possession for sale. I think there’s no limit to the number of charges he can make. Let’s say you happen to be a person passing a bad check. They can charge you with uttering a bad check plus conspiracy to defraud plus possession of counterfeiting tools or whatever. Or you walk into Safeway and you want to steal a loaf of bread. Well, that’s petty theft, but entering the premises for purposes of petty theft can be burglary, and it becomes violent robbery if the security guard tries to stop you and you pull your arm away.
Needless to say, each new charge augments the bail bondsman’s ten percent. When the Salem witchcraft trials were in full flourish, they arrested a man named Giles Corey, who to save his estate would not plead innocent or guilty, so the magistrates in their wisdom directed that he be laid down upon his back in a dark room and slowly crushed to death with weights. Doubtless, many of the Giles Coreys whom we press with the less reprehensible weight of bail actually did the deed, and deserve to remain in the dark room for the duration. But remember the principle of innocent until proven guilty.
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Thus the first flaw of bail, its absolute arbitrariness. (As a smart young lawyer once told me: The criminal justice system is an ad hoc system. It’s not logical.) The second flaw is its relative arbitrariness. How brittle is each Giles Corey’s ribcage? Does any given sum of bail weigh the same to me as to you? —We had one guy who was faced with seven hundred and fifty thousand dollars bail, Ron Albers said. The charges were very serious. What the person did, I don’t have to get into that. But bail could have been set at a hundred thousand; it wouldn’t have made any difference. He couldn’t have gotten out of jail. But another guy with a hundred-thousand-dollar bail did get out. He had enough resources to pay for an attorney to boot. Those were serious sexual assault charges. And some of the guys you saw in Department Twenty-Two today had bail set for five thousand dollars or less. They didn’t have the five thousand on their credit cards, and they didn’t have the five hundred plus collateral for the bail bondsman. So they’re sitting in jail.
In the elevator at Five Fifty-Five Seventh Street, I met a lady who often represented street prostitutes. The elevator was slow, so I inquired of her how often those types were able to make bail. —Almost never, she replied. —And a bargirl friend of mine whom I’ve visited in jail more than once (let’s call her Strawberry), assured me: I’ve never had bail in my life. And I don’t get a trial anymore either. It’s all parole violation.* They take me and lock me up. You shouldn’t be writing about bail. That’s irrelevant. You should tell people about what goes on in jail. What they like to do is beat you when you’re in the elevator, when they’re taking you up to your cell.
This being a novel, we need not sorrow over wretches such as Strawberry, who don’t even exist—I made her up out of three sad women I know—and the sad woman who alluded to the beatings she got was also quite practiced in weeping over her dead baby and then hitting me up for money; so let’s suppose that she never was beaten (although one time, and here I write not as a novelist but as a witness, I saw two policemen enter the back door of the place which we’ll call the Wonderbar, and march her into their squad car because she’d violated her parole again—which is to say, because she’d been sitting quietly at the Wonderbar—and when I strolled out to watch them and see if I could do anything to help Strawberry I saw one cop at the wheel while the other cop was sitting in the back seat beside Strawberry, whose head he now began to drag down into his lap.
Fifteen minutes later, she was back at the bar, dully pretending that nothing had happened.) Let’s suppose that our prisons tower uncorrupted by jailers’ violence, because that’s a pleasanter supposition, and, besides, the rottenness or purity of prisons may affect but cannot alter the fundamental stinking crookedness of bail, which is the crookedness of life. Let’s even suppose that Strawberry some red-shining evening (oh, ecstasy!) found herself legally eligible for bail. What then? Ask Mr. Roger Adair at Ace Bail Bonds in Sacramento. He is a clever, pleasant, practical man. He answers all questions. He says: If you’ve got a Six Forty-Seven case we don’t even deal with you. Six Forty-Seven is prostitution. If there’s even loitering involved, we won’t do it. We get such a small amount of money, and the hassle’s just not worth it. The meat and potatoes of what we do are domestic violence and methamphetamines.
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Unlike birth, bail may occur at practically any phase of gestation within the lion’s barred womb—or, as Strawberry knows, it may never h
appen at all. (When a full-term defendant does get delivered, the prosecution may well consider it a miscarriage of justice. But never mind.) Arrest is conception; that’s when one’s implanted in the pit. But because most arrests are warrantless, the pregnancy’s not yet “in the system” until the second step when the defendant gets “processed”—that is, fingerprinted and otherwise inspected, recorded and made recognizable to the lion’s gaze. I have heard prostitutes protesting and even wisecracking with their arresting officers as they roll off to jail, but “processing,” like the sign which commands SILENCE: COURT IN SESSION, strips them of public entreaties, accusations, outcries. They’re in the cage now. —You can be bailed as soon as you’ve been processed, a public defender explained to me. Generally they want to get you out if they can. —And, of course, if the defendant can. Does he have the cash? There he is, upstairs in a cell with strangers who might be violent. (My friend B. told me how afraid he was of his new brothers on that long afternoon after arrest. He wasn’t sure whether to be friendly or inconspicuous.) But who knows? Maybe freedom’s jackpot will bust him out here and now. Should the accusation against him be sufficiently trivial, he’ll be cited to appear at a later date. This is what happened to B. Somebody came, some official somebody who owned the authority to decide that B. was too young and innocuous to lie in jail that night, and so B. staggered back into freedom’s twilight without paying a penny, released on his own recognizance, or O.R.’d as they call it. He has never been back in jail since.
Whether our defendant gets out or not, gestation now continues to the third step—namely, arraignment in court. Bail grows even more volatile here, like a feather dancing in the breath of a judge. One detainee’s five-thousand-dollar mistake is another’s twenty-thousand-dollar crime. A D.A. up in Sacramento spoke to me of a push to limit the number of people who review these things so we get more uniformity. (I myself would simply prefer a more uniform code of bail.) Arraignment must take place within forty-eight hours of arrest, and the defendant must be present. Bailed people thus do not entirely resemble cancer patients in blissful remission. How can they pretend it’s over? They must return to the lion’s jaws again and again. For a simple misdemeanor matter, the accused makes at least three appearances. For a felony, the minimum is five. —Felony cases may meander through many, many pretrial conferences. (With time, everybody relaxes, said a San Francisco public defender named Matt Gonzalez. It’s like, can we work a deal? But I have cases where a guy has appeared fifteen or twenty times. Ageing the case, they call it.)
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