Prepping for the joint Acton/Liberty Fund sponsored conference that begins tonight: Religion & Liberty: Acton and Tocqueville, part of Acton’s Liberty and Markets program, I came across the following thought-provoking quote from Alexis de Tocqueville:

The civil and criminal legislation of the Americans knows only two means of action: prison or bail. The first action in proceedings consists of obtaining bail from the defendant or, if he refuses, of having him incarcerated; afterwards the validity of the evidence or the gravity of the charges is discussed.

Clearly such legislation is directed against the poor and favors only the rich.

A poor man does not always make bail, even in civil matters, and if he is forced to await justice in prison, his forced inactivity soon reduces him to destitution.

A wealthy man, on the contrary, always succeeds in escaping imprisonment in civil matters; even more, if he has committed a crime, he easily evades the punishment awaiting him: after providing bail, he disappears. So it can be said that for him all the penalties of the law are reduced to fines. What is more aristocratic than such legislation?

Tocqueville argues that, contrary to the general spirit of American legislation, in which “it is the poor who make the law, and usually they reserve the greatest advantages of society for themselves,” this practice was simply a carry-over from English law, uncritically accepted.

I suppose this is not the first time I have noticed this (and I’m sure that I am not the first person to point it out), but as a student of historical theology I do not spend much time reflecting on modern criminal legislation and reading this quote brought the oddity back to light. Does the bail system in the United States unjustly favor the wealthy? I cannot help but agree with Tocqueville.

I am reminded of the words of St. James:

My brethren, do not hold the faith of our Lord Jesus Christ, the Lord of glory, with partiality. For if there should come into your assembly a man with gold rings, in fine apparel, and there should also come in a poor man in filthy clothes, and you pay attention to the one wearing the fine clothes and say to him, “You sit here in a good place,” and say to the poor man, “You stand there,” or, “Sit here at my footstool,” have you not shown partiality among yourselves, and become judges with evil thoughts? (James 2:1-4)

For those of us, furthermore, who acknowledge a “preferential option for the poor,” it ought to be glaring that the opposite, a preferential option for the wealthy, is so enshrined in our criminal law.

Now, it must be said that laws, of course, are (or ought to be) a matter of prudence, and so failure to perfectly conform to natural justice ought to be expected. But is not the current system far worse than a prudential settling for the closest practical option to the ideal? Are there no better alternatives? Could we not make moral progress as a society here?

And, indeed, if Tocqueville is correct about the origin of such a practice, isn’t it also un-American?

I am interested to see what other participants at the conference have to say. If any readers would like to participate in future Liberty and Markets conferences, check out the program page on our website here.