Early Friday morning, 29 heavily armed federal agents swarmed the home of Roger Stone, arresting him abruptly following his indictment on seven federal counts ranging from witness tampering to obstruction of justice. Despite the dramatic circumstances around his arrest and the severity of his charges — particularly the charge of witness tampering — Stone walked out of jail the same day as his arrest on a $250,000 promissory bond, which means he promises to pay that amount only if he fails to comply with his terms of release.

Stone, a former political adviser to Donald Trump, attacked special counsel Robert Mueller’s decision to have him arrested by an FBI SWAT team rather than allowing him to self-surrender. Mueller argued that doing so was necessary because of the high risk that Stone would destroy evidence or tamper with witnesses were he tipped off. Indeed, just last year, following his release on bail pending charges also brought by Mueller, Paul Manafort, another former Trump adviser and lobbying partner of Stone, was sent back to jail after he tried to tamper with witnesses while released on bail.

You would think that the real risk of Stone tampering with evidence would make him the poster child of pretrial incarceration. Yet Stone, like many defendants in federal court without criminal records and charged with nonviolent offenses, was released after signing a simple bond. The fact that he was considered risky enough to warrant such a dramatic arrest but was released on bond so quickly is a reminder of the deep disparities in who is typically allowed to walk free after an arrest and who is not — as well as how differently state and federal courts work when it comes to pretrial release.

I’m a public defender in Oakland, California. My clients’ experiences in state court could not differ more from those of Stone’s in federal court. Most of my clients are victims of a flawed bail system that allows the rich to buy their freedom while the poor remain in jail. Though many of my clients live in poverty, their bail typically constitutes amounts that would be unfathomable for them to come close to paying.

In federal court, by contrast, often defendants who are released sign promises to pay rather than actually posting money to the court or a bondsman in order to be released. (Part of the reason for this is the resources the federal government has in some districts to assess and monitor defendants while their case is pending; state courts usually don’t have these resources, so judges tend to use incarceration and bail to ensure defendants return to court.)

What troubles me most, though, is that Stone’s release on the day of his arrest likely would have happened even if he were charged in state court, where what separates those who are incarcerated from those who are released usually comes down to financial status. Every day I see disparities in the way our criminal justice system treats the rich and privileged versus how it treats the poor and marginalized — disparities much starker in state courts, where the vast majority of people are prosecuted and where bail plays a more prominent role.

In state courts, white, wealthy, and powerful criminal defendants, like Stone, are routinely released after posting some form of bail. It’s worth noting that in state courts, this often happens even where violence is alleged: Take Harvey Weinstein, who easily posted $1 million bail on multiple charges of sexual assault in New York state court despite facing the possibility of life in prison.

How the bail system disadvantages low-income people

As I’ve written previously for Vox, the bail systems in most state courts wages war against the poor by forcing them to remain in jail while those with resources can buy their freedom. Because the amount of bail is not determined in proportion to someone’s ability to pay, people with affluence or wealthy connections manage to get out of jail, while low-income defendants remain incarcerated, even when bail is relatively low. This broken system causes many to languish in jail simply because they are poor.

It’s easy to understand the toll that incarceration places on people while they are in jail, but there is actually a broader impact: the effect it has on whether those people plead guilty. Prosecutors and judges often capitalize on the desperation of people in jail. The way to virtually guarantee someone will settle a case is to offer a literal out; plead guilty and get out of jail — sometimes weeks, months, or even years after the pretrial incarceration began.

Throughout my career, I have encountered countless clients, including innocent ones, who decided to plead guilty simply because doing so would get them out of jail sooner than even winning at trial would. And, of course, because people in jail are often desperate to resolve their cases, they frequently get worse plea deals than those with the financial resources to post bail.

Out of jail, by contrast, there is time and greater opportunity to work every angle until the best outcome is achieved. Sure enough, within hours of his arrest on Friday, Stone was trying to do just that, calling in to a far-right radio show, professing his innocence, and imploring listeners to contribute $2 million to his legal defense. As photos of Stone lounging with lawyers after his release reveal, the attorney-client relationship can also better flourish without jail barriers limiting access; this can often mean better outcomes in trial.

I don’t blame my clients, who have loved ones just as important as those in Stone’s life, for making decisions that get them out of jail. But I do blame a system that forces them to weigh their immediate freedom against their long-term futures. Because those plea deals my clients take simply to get out of jail will haunt them forever — not only by limiting their options in life, but even by increasing their bail should they be arrested again. The cycle continues.

Thoughtful bail reform is necessary

Recent bail reform efforts nationwide give some hope that our country is heading toward change. Prominent members of Congress have recently taken up measures to reform bail in federal and state court. Yet many of these efforts still miss the mark; in California, for example, a recent bail reform bill signed by then-Gov. Jerry Brown is likely to lead to even more incarceration, not less. The bill creates a presumption in favor of incarceration for even many low-level offenses and misdemeanors for which people were frequently released (or given low bail) in the past.

The bill also leaves judges with far too much discretion to decide whom to incarcerate; under the new law, experts predict that judges will choose to release folks who, like Stone, are wealthy and privileged, and detain (without any possibility of release before the conclusion of the case) those who are not. It also relies on a risk assessment tool likely to further racial disparities by weighing factors that tend to be proxies for race, such as likelihood of future police contact, which of course, happens disproportionately in communities of color, which the police tend to target. That’s why criminal justice reform advocates, including the American Civil Liberties Union and the NAACP, opposed the final bill, which is currently on hold following challenges by the bail bond industry.

Instead of crafting a solution that will jail more people, we need thoughtful bail reform focused on reducing pretrial incarceration, eliminating the existing racial and socioeconomic disparities in our jails, and ensuring no one is jailed simply for being poor.

After all, in a country in which Roger Stone, in spite of all the compelling reasons to be concerned over his release, is allowed to fight his case from outside the confines of a jail cell, then surely the many defendants who pose no such risk should be allowed to do so as well.

Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.

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