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The racial reckoning last summer sparked a resurgence of efforts to address the injustice of cash bail.
In the U.S., it’s legal to be kidnapped and incarcerated without being convicted of any crime. You haven’t confessed. (Read about the injustice of plea deals.) You aren’t considered dangerous or liable to flee before your court date. You have not been proven guilty so you must, by this country’s legal code, be considered innocent. You are nonetheless told you will be incarcerated indefinitely. Your trial date may be scheduled for a few weeks from now – – or, it may not arrive for years.
Your jailers have told you that if you pay a hefty bribe, they will let you walk out the door, free until called for your trial. But perhaps you and your family can’t afford the arbitrary number set for your release. You might consult a bail loan shark (The Appeal), or try to get support from a local bail fund. But otherwise, you wait. And in the process, many lose their job, house, and reputation – all while suffering the physical and emotional toll.
The scenario described above is the reality for 460,000 Americans right now (GQ). It’s the numerical equivalent of a supervillain holding every resident of both Reno and Madison, WI for ransom – except the supervillain is the American government.
“95% of the people in this jail are waiting on a trial,” said a Chicago sheriff. “On any given day we have probably two to three hundred people that, if they came up with $500, they would leave” (CBS News).
In 2010, 16-year old Kalief Browder was stopped by the police for robbery. The police found nothing. The supposed victim then changed his story and accused Browder of stealing a backpack weeks earlier. This was enough for the police to arrest him.
A judge set Browder’s bail at $3,000. He could not pay, so he was sent to Rikers Island. Shortly after arriving, he was sent to solitary confinement for the first of many times. His final stretch in solitary lasted 17 months. After three years the D.A. dropped the charges and at 20, Khalief Browder went home a free man (New Yorker). Rikers, he said, robbed him of his happiness. Two years later, he died by suicide (Vibe).
In 2011, the Supreme Court said California’s jails were “incompatible with the concept of human dignity”; one catatonic man was caged for 24 hours in a pool of his own urine (Human Rights Watch). Incarcerated people in Philadelphia wake up and go to sleep surrounded by mouse feces (Marshall Project). Arizona jails live-streamed video of suspects being strip-searched and using the toilet on the internet (Human Rights Watch). When women report sexual assault in this country’s jails, they are placed in solitary (Truthout). Almost 2,000 people in an Orange County jail contracted COVID after the sheriff refused a court order to reduce the jail population (Time).
A majority of those in jail are awaiting trial. An overwhelming majority of those in pretrial detention are incarcerated just because they can’t pay bail (Prison Policy Initiative).
Incarceration can’t reduce harm when jails and prisons have systematic sexual violence, assault, and abuse. We know they don’t keep us safe since we have hard data that being incarcerated makes people more likely to “reoffend” (Daily Dot). America’s jails and prisons are in flagrant violation of international norms and any reasonable moral code: no human should endure such conditions, including, yes, those convicted of serious and terrible crimes (Medium).
But it is especially appalling that those considered innocent spend months or years in such institutions solely because they lack the money to ransom themselves from the state. There is a movement around the country to end the practice of cash bail. Residents of San Francisco and Philadelphia elected district attorneys who committed to ending it (Huff Post, NBC). Algorithmic “risk assessment tools” in place of cash bail can still import racial biases, and even anti-cash bail D.A.’s like Philly’s Larry Krasner unjustifiably over-incarcerate those awaiting trial (Philadelphia Bail Fund). Ending cash bail is still a necessity.
We should only allow district attorneys who oppose the practice to take office, we need to stand with communities to hold them accountable once they do, and those with financial means should give generously to community bail funds to ensure nobody in this country is locked for poverty alone. We have a responsibility to dismantle a historically large, systematically racist, and monumentally unjust system in any way we can.
Hundreds of thousands of Americans are incarcerated solely because they can’t post bail.
American jails are rife with violence, assault, abuse, and inhumane conditions.
Ending cash bail is an important step in ending incarceration, a practice we know does not prevent interpersonal harm.