Moving from Ending Money Bail to Demanding Pretrial Freedom

Click here to read all posts in our Money Bail series, including the introductory post presenting an LPE perspective on pretrial detention.

Brett Davidson, Elisabeth Epps, Sharlyn Grace, and Atara Rich-Shea—

CJEWebsitediagrams2As directors of community bail funds in Chicago, Colorado, Connecticut, and Massachusetts, we know that money bail is not and has never been the entire or only problem. As tempting as it is to believe that ending money bail is the cure to pretrial injustice, we must recognize it as merely one piece of a much larger system of racialized social control. If money bail were eliminated tomorrow, the state would maintain many other insidious ways to punish people awaiting trial, such as through home confinement, financial penalties, surveillance and monitoring, allegations of “violations,” and jailing through outright denial of release.

As the public increasingly understands and rejects money bail, the system is attempting to regain legitimacy by shifting around resources and co-opting movement messaging. Over the past five years, many system stakeholders and elected officials have responded to the call to end money bail by proposing or adopting versions of “bail reform” that pluck money bail from the larger conversation about pretrial incarceration and supervision, and focus on only the most basic injustices. Efforts that create new pretrial supervision structures, implement risk assessment tools that put people into detention and release categories, and abolish the use of money bail for only “low-level” charges can all result in increased surveillance and supervision by the criminal legal system. These changes also further the idea that only some people deserve to be released while awaiting trial and frequently fail to result in any actual decarceration. Most importantly, these policy changes rarely, if ever, involve the courts relinquishing power over the marginalized people they harm. The next phase of pretrial advocacy must transform the simple call to “End Money Bail” into a vision of expanded pretrial freedom for all—moving our society closer to a future where we do not respond to all harm or inconvenience with cops, courts, and cages.

Sometimes the office or agency pushing bail reform is the very entity responsible for filing criminal charges and even requesting pretrial incarceration. “Progressive prosecutor” campaigns have become more common, with candidates and newly elected prosecutors pledging to end money bail and take other steps to address mass incarceration. Most recently, in California, newly elected San Francisco District Attorney Chesa Boudin released his policy to end money bail, declaring that “by replacing money bail with a risk-based system, people who are safe to be released get released quickly with appropriate, non-monetary conditions, and those who pose a serious threat to public safety are detained, regardless of wealth.”

Yet San Francisco, where Boudin’s new policy is being implemented, already uses the Arnold Foundation’s risk assessment tool (RAT), the Public Safety Assessment (PSA). The PSA’s calculations, like all RATs, use racist historical aggregated data claiming to predict the future behavior of an individual. In many cases, what they actually predict—with varying levels of accuracy—are the criminal legal system’s responses to an individual based on race/ethnicity, residence, and economic status. Further, without clear limits on the role of preventive detention, there is no guarantee that simply eliminating money bail and/or adopting a RAT will result in fewer people being jailed.

To reject money bail, Boudin and other reform prosecutors in Boston, Chicago, Philadelphia, and elsewhere have relied on perpetuating and deepening a public perception that jailing people pretrial creates public safety. Their message is essentially, “if there was a lack of safety before, it was because the wrong people were in jail. With improved decision-making, the right people will be jailed while presumed innocent, and safety will be increased.” In addition to dangerously promoting law enforcement as leaders in decarceration, this approach ignores the devastating effects of pretrial incarceration, including the destabilization of people’s lives. Jailing people ensures they lose their jobs, housing, access to treatment and other healthcare; disrupts their social support networks; and makes us all less safe. Safety comes from strong, well-resourced communities, not efficient human caging. To ensure that ending money bail actually advances the ultimate goal of ending incarceration, we must build non-carceral models of pretrial release while also imposing strict limits on the use of risk assessment tools.

Similarly, pretrial reforms originating with the courts have had mixed and troubling effects. In 2017, the Massachusetts Supreme Judicial Court held that judges must consider a person’s ability to pay when setting bail. In the two years since that case was decided, money bails have been set at roughly the same rate in Massachusetts, even while preventive detention orders have increased. In Cook County, Illinois, a local court rule that went into effect in September 2017 instructed judges to set money bails only in amounts people could afford to pay, essentially trying to enforce existing law in response to pressure from community organizing and impact litigation. Despite the clarity of the law on the issue and a decrease in the overall use of money bonds, judges in Cook County continue to use unaffordable money bail to circumvent clear limits on preventive detention. Last year, community organizers documented that nearly 2,000 people remained incarcerated in Cook County jail due to unaffordable money bails on the second anniversary of the order taking effect.

Increasing pretrial freedom requires looking beyond the lens of incarceration due to unaffordable money bail, to understand the complicated, interconnected systems of criminalization of which it is a part. Most people in jails and prisons in the United States live in poverty, which means that nearly all U.S. incarceration is already “wealth-based.” And we cannot forget that it is also certainly race-based. Also, while unpaid money bail is what prevents the majority of people in county jails from getting out, many people jailed pretrial are detained due to probation or parole holds, or because they were denied release outright. Ending money bail does not get those people free.

Moreover, pretrial incarceration does not exist solely in the realm of the criminal legal system. Jails expand the reach of other punitive regimes such as ICE and child welfare systems. There are more than 60,000 people on any given day languishing in ICE jails as they undergo civil immigration proceedings. One report shows that between January 2017 and June 2018, ICE assumed custody over someone first arrested by local police in 41% of ICE arrests. Similarly, pretrial incarceration is a common pathway into child welfare prosecutions, since those systems often become involved at the moment of pretrial incarceration to take children—especially Black children—away from their parents and caregivers. Ending pretrial incarceration and supervision would address these injustices, while simply ending money bail would not.

The road toward abolishing pretrial incarceration and supervision will not be easy. In Chicago and New York, we have seen very organized opposition to even modest reforms, buoyed by traditional media outlets eager to amplify baseless claims. The law enforcement entities that have relied on money bail to coerce and punish people before trial will not give up their power easily.

But we must continue on the path to liberation. This may involve incremental abolitionist reforms, changes that strategically push us toward caging fewer people. Collectively, we are on our way to increasing pretrial liberty—real liberty, not liberty limited by electronic or other expensive conditions.

The authors are all active organizers with the National Bail Fund Network: Brett Davidson is the Co-Director of the Connecticut Bail Fund. Elisabeth Epps is the Director of the Colorado Freedom Fund. Sharlyn Grace is the Executive Director of Chicago Community Bond Fund. Atara Rich-Shea is the Director of the Massachusetts Bail Fund.