It is no longer controversial to say that our current system of money bail is flawed.

When more than 450,000 people are incarcerated before trial at any given time—a majority of whom are there because they cannot afford the amount of money that a judge has set for their bail—we are doing something wrong. Money bail is a stark and prominent indicator of how the criminal legal system disproportionately punishes those in poverty and, by extension, of certain races. While a tentative consensus exists across the political spectrum that there is a problem, the shape and scope of reform is a charged topic of debate.

But what comes after money bail? As we think about pretrial detention, incarceration, and the criminal legal system more broadly, we need to widen the scope of our thinking beyond the relatively simple idea that “money bail is unfair to poor people” to a larger imagining about the harms of pretrial detention and even criminal adjudication itself. This requires pushing for a larger vision of how the state could provide safety and security in the face of both harm and structural neglect and connecting that vision to our systems of money bail and pretrial detention.

A NEW WAVE OF REFORM

We are well into a new wave of bail reform throughout the United States, at both the state and local levels. Although we would not have reached this point without the longtime organizing of those on the ground, the consensus on the flaws of money bail is not limited to jurists, advocates, and organizers on the political left. In 2018, Hon. Edith Brown Clement, senior United States circuit judge of the Court of Appeals for the Fifth Circuit, and a conservative once thought to be a top contender for a Republican-appointed Supreme Court seat, found that the bail practices of Harris County, Tex., violated the Equal Protection and Due Process Clauses, naming money bail an “instrument of oppression.” In her decision in O’Donnell v. Harris County, Judge Clement explained the widespread sense of injustice:

Judge Clement’s opinion was a major step for equal protection jurisprudence. Potentially, we are at the dawn of a broader existential crisis for the institution of money bail: an acknowledgment that bail not only incarcerates based on poverty, but also eradicates the presumption of innocence, assuming criminality and guilt without adequate process.

But the political economy of money bail goes deeper than Judge Clement’s fable of singular rich and poor persons assigned to different fates. Professor Angela Harris of UC Davis School of Law connects money bail to a criminal legal system that extracts wealth from segregated communities of color over generations, only to reveal itself later through incarceration for failure to pay fines, fees, or bail. This “slow violence,” as she describes it, must be analyzed as a problem at the intersection of race, class, and geography.

In addition, as the Movement for Black Lives writes in its eye-opening 2016 Transformative Bail Reform Curriculum, money bail cannot be fully understood without placing it within the historical context of the criminalization of blackness and the monetization of freedom, reaching as far back as the transatlantic slave trade and the practice of slaves buying their freedom. These structural forces of oppression reinvent themselves in today’s court system as determinations of “high risk” of flight or threats to “public safety,” leading to a monetary number being put on an individual’s freedom.

THE DANGERS OF IGNORANCE

If we do not contend with the underlying structural and historical problems that emerge from a deeper analysis of money bail, then we will find ourselves either at a deadlock or at a gradual circle back to the problems that got us here. We will find ourselves using Risk Assessment Tools (RATs), algorithmic calculations of the likelihood of rearrest that inevitably embed racial, economic, and gender hierarchies into their judgments of risk. Or even without RATs, we will find ourselves pointing to seemingly neutral facts—a person’s prior record, a charge of “violence,” a lack of “community ties”—and subject someone to incarceration before conviction based on the slow violence of the past.

To move beyond money bail requires thinking carefully and openly about who is on the receiving end of any shift in power and decision making in bail reform. Will it be blue ribbon commissions, secret algorithmic codes, enlightened judges, “progressive” prosecutors? Newly elected Queens County District Attorney Melinda Katz unknowingly reminded us of the risks of allowing bail reform to be a purely technocratic enterprise in her first months in office. The prior year, Katz campaigned on a pledge to stop asking for cash bail in most criminal cases. However, after taking office in January 2020, she changed her mind, saying, “I do believe it deep in my heart…that cash bail is unfair, it’s inequitable…[but] we are not there yet.”

2.3 million people are confined nationwide (rate of 698 per 100,000 residents)

Labels are rounded to the nearest thousand; figures may not add up precisely to total.

Labels are rounded to the nearest thousand; figures may not add up precisely to total.

Only by shifting power and recognizing the expertise of the communities most devastated by mass incarceration will we begin to hear and imagine other ways the state can provide safety and security.

Ironically, money bail is itself a form of public participation, a moment of outside intervention in an expert-driven process. As I have written in the Columbia Law Review, Michigan Law Review, and elsewhere, grassroots organizations are pushing back against the dominant ideas of “public safety” and “community” that sustain pretrial detention. These groups do this in part through the collective act of posting bail for individuals via bail and bond funds. The ability of a community group to post bail can be a powerful act of reclaiming collective agency and redefining public safety, even as the institution of money bail is at the same time a force of oppression.

The median bail amount is $10,000.

The median annual income for men detained pretrial is $15,598; for women, $11,071.

TOWARD A NEW NARRATIVE

So far this year, popular discussion about bail reform has been loudest in New York. In January, legislation requiring mandatory release without bail for some “low-level” offenses went into effect. As a result, the number of people incarcerated pretrial has declined throughout the state. At the same time, the media and politicians from both sides of the aisle have criticized the new legislation using racist dog whistles, demanding troubling rollbacks. They have cherry-picked stories of mentally ill people being arrested after release, ignoring the hundreds of New Yorkers who have been able to avoid the violence of jail and return to their jobs, schools, and families while waiting to see what happens with their case. And they have partially succeeded: as of early 2020, New York’s new budget includes limited rollbacks to the new law by expanding the number of bail-eligible offenses. Even if these rollbacks do not go as far as some pro-carceral advocates demanded, they will reduce the decarceral impact of bail reform. By keeping people in cages before they have been convicted of anything—and, moreover, by doing so at a time when COVID-19 is raging through jails and prisons at a rate far surpassing the rate within the general population—they will keep us less safe than we would have been had we maintained the current reforms.

The debate in New York reflects the paucity of our current discourse around bail. When we reduce the debate to questioning, for instance, whether mentally ill individuals should be locked in cages, we stop ourselves from asking larger questions about how the state supports people with mental illness in ways that keep all of us safe.

We must, instead, write a new narrative, not by contrasting a rich person and a poor person, but by contrasting existing discourse with new accounts of freedom and safety. We have made some progress in this regard, but as we have seen from the recent pushback in New York, our efforts must be constant and unrelenting. The work continues.

TOWARD A NEW NARRATIVE

So far this year, popular discussion about bail reform has been loudest in New York. In January, legislation requiring mandatory release without bail for some “low-level” offenses went into effect. As a result, the number of people incarcerated pretrial has declined throughout the state. At the same time, the media and politicians from both sides of the aisle have criticized the new legislation using racist dog whistles, demanding troubling rollbacks. They have cherry-picked stories of mentally ill people being arrested after release, ignoring the hundreds of New Yorkers who have been able to avoid the violence of jail and return to their jobs, schools, and families while waiting to see what happens with their case. And they have partially succeeded: as of early 2020, New York’s new budget includes limited rollbacks to the new law by expanding the number of bail-eligible offenses. Even if these rollbacks do not go as far as some pro-carceral advocates demanded, they will reduce the decarceral impact of bail reform. By keeping people in cages before they have been convicted of anything—and, moreover, by doing so at a time when COVID-19 is raging through jails and prisons at a rate far surpassing the rate within the general population—they will keep us less safe than we would have been had we maintained the current reforms.

The debate in New York reflects the paucity of our current discourse around bail. When we reduce the debate to questioning, for instance, whether mentally ill individuals should be locked in cages, we stop ourselves from asking larger questions about how the state supports people with mental illness in ways that keep all of us safe.

We must, instead, write a new narrative, not by contrasting a rich person and a poor person, but by contrasting existing discourse with new accounts of freedom and safety. We have made some progress in this regard, but as we have seen from the recent pushback in New York, our efforts must be constant and unrelenting. The work continues.

Professor Jocelyn Simonson,
is associate professor of law and codirector of the Center for Criminal Justice. She writes and teaches about criminal law, criminal procedure, evidence, and social change. Her scholarship explores ways in which the public participates in criminal legal processes and how that participation has the potential to lead to broader changes in the justice system. Her scholarly articles have appeared or are forthcoming in the Yale Law Journal, Columbia Law Review, Harvard Law Review, California Law Review, Georgetown Law Journal, and NYU Review of Law & Social Change. She was recently granted tenure by the Brooklyn Law School faculty.