Editorial: The crime of being poor in N.H.

Maybe 26-year-old Jeffrey Pendleton would have died anyway – on the street, in a homeless shelter or, if he hadn’t be arrested again, at work in one low-paid job or another.

But Pendleton died in Manchester’s Valley Street jail, where he’d been for the previous four days because he couldn’t come up with the $100 bail imposed by a judge. Had he not died, he would have spent 30 days in jail for possessing a small amount of marijuana before going to trial.

Pendleton was one of untold thousands of inmates, primarily in city or county jails, who served time before they were found guilty of anything. They were behind bars because they are poor.

No one knows exactly how many people are behind bars because they couldn’t make bail for a minor offense. Neither the federal government nor the state corrections system collects statistics that would allow policy makers to come up with that number, or know how many of the poor plead guilty just so they can save their job, care for family or forestall eviction.

Anecdotally, and in the opinion of many in law enforcement, the cash bail system is an abused and discriminatory tool.

The unfair and often unconstitutional nature of the bail system requires analysis and reform, something New Hampshire’s Legislature should authorize and fund. At a minimum, bail for minor, nonviolent crimes should be set at personal recognizance barring evidence that the accused won’t show up or presents a danger to the community.

In a speech earlier this year, U.S. Attorney General Loretta Lynch said that “when bail is set unreasonably high, people are behind bars only because they are poor. Not because they’re a danger or a flight risk; only because they are poor.”

The United States, for some of the right reasons, is in the early stages of sentencing and bail reform. The effort is bipartisan in part because the nation’s prisons are crowded, and incarcerating nearly 2.5 million people is expensive.

Incarceration also tends to be ineffective because it is rare to find systems willing to spend the money on drug treatment, education and behavior programs that actually rehabilitate people.

Unless the alleged offense can lead to incarceration, the accused is not entitled to representation by a public defender. But that doesn’t mean no jail time.

Pre-trial detention, unless credited against a sentence imposed by a judge, counts for nothing. A life can be unraveled for the simplest of offenses or false charges. Most of the time defendants plead guilty, whether they are or not, because they have no other way to get out of jail. They are not compensated for time served if exonerated or if the prosecution drops the case.

Pendleton, in that way, was an exception. With the help of the New Hampshire ACLU, he sued two New Hampshire towns, Hudson and Nashua. Hudson police cited Pendleton for panhandling and jailed him, an abridgment of his right to free speech because no law barred panhandling on public property. The town settled for $5,000.

Nashua police charged Pendleton with walking through the park adjacent to the town’s library after being told to stay away. After spending 33 days behind bars because he didn’t have $100, the charge was found unconstitutional. Nashua settled for $15,000.

Clearly New Hampshire’s cities and towns need more guidance, and judges and prosecutors should understand how a bail amount that would be insignificant for most people can be an insurmountable obstacle for a poor person or family. They should know that the price paid for pre-trial incarceration is often out of all proportion to the offense alleged.

An autopsy failed to determine the cause of Pendleton’s death, and toxicology reports aren’t yet available. But that price can include death, as young Kalief Browder proved. The Bronx teenager was held on bail for three years on New York’s Rikers Island, two in solitary confinement, for allegedly stealing a backpack. His case was dismissed and Browder freed, but scarred by being jailed at 16, he killed himself.

That was a crime.