Reading Bail Reform Through a Critical Race Lens

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

Sean Allan Hill II—

Recent years have seen an explosion in calls to reform bail laws across the country. California and New York, among other states, witnessed the launch of grassroots campaigns made up of, and led by, traditional actors like public defenders and non-profit leaders, as well as the formerly incarcerated and their loved ones. These campaigns sought new bail schemes that would facilitate, rather than impede, pretrial release. In California, this took the form of SB10, while in New York, coalitions lent their support to A10137-A. While the California bill incorporated pretrial risk assessment instruments (PRAIs)—tools that rely on computer algorithms to predict the probability of selected outcomes—into bail proceedings, the New York bill did not.

Critical race theory can supply a framework for interpreting the progression of bail reform in the respective states. This framework implicates carceral policies in the persistence of racial and class hierarchies, and seeks to assess how the law generates racist ideologies that normalize the over-representation of Black people in the criminal legal system. Whether the decarceral objectives of grassroots coalitions will be achieved, or compromised, is therefore a question of how well they recognize and address the relationship between PRAIs and longstanding perceptions of Blacks as exceptionally dangerous.

The aforementioned California and New York bail bills shared several similarities upon their introduction. Both bills, for example, mandated release for misdemeanors and non-violent felonies, with certain select exceptions. Cash bail remained available for violent felony matters, but judges were obligated to set amounts according to the financial circumstances of individual defendants. In other words, neither bill treated monetary bail as an impediment to larger decarceral aims, so long as it was restricted and subject to financial ability.

Yet the two states are distinct in one specific regard: in New York, judges are only authorized to set bail in an amount that will assure future court attendance, while in California, as in much of the country, judges are authorized to consider “public safety risk” in addition to “flight risk” when setting bail. This arguably explains the different postures the respective grassroots coalitions took toward PRAIs.

In New York, prior to the introduction of A10137-A, coalition members issued a public letter to the governor, positioning PRAIs as antithetical to decarceration. The instruments, they asserted, wrongly implied that dangerousness predictions could be made reliably, opened the door to incorporate those predictions into bail proceedings, and could ultimately expand the grounds for incarcerating presumptively innocent people. Thus, the bill excluded both the tools and dangerousness assessments. Its provisions were wholly incorporated into the state budget, and Governor Cuomo signed the bill into law in April 2019.

In contrast, SB10 in California permitted judges to use PRAIs as part of bail assessments. Yet coalition members still lent their support to the bill, presumably because dangerousness predictions had been part of the California constitution since 1974. They were also inclined to support the bill because the PRAIs would not determine eligibility for detention, only conditions of release.

By the time Governor Jerry Brown signed SB10 into law, however, its grassroots supporters had withdrawn their endorsement. In public letters issued to the bill sponsors, former supporters contended that the original bill’s decarceral objectives had been entirely compromised. Although the legislation was heralded for eliminating monetary bail, supporters argued that one discriminatory system had been replaced with another—where release and detention determinations would now revolve around a PRAI-produced risk score.

Critical race theory provides a framework for interpreting these differences in how bail reform progressed in California versus in New York. Critical race theory contends that the law is deeply implicated in popular understandings of race, routinely normalizing Black subordination while preserving select rights for whites. Thus, the laws underlying slavery did not merely define who was white and who was Black; they conditioned bondage on one’s race, where classification as Black rendered one vulnerable to state coercion. The post-abolition Black Codes, too, derived legitimacy from prevailing conceptions of Blackness as susceptible to domination. These laws facilitated the targeted arrest and incarceration of the formerly enslaved. To justify the Black Codes, states invoked the danger that newly freed African Americans would allegedly pose to white communities, particularly white women. And in a vicious cycle, the foreseeable and disproportionate incarceration of Blacks that resulted was used as evidence that Black people were, in fact, more dangerous than their white counterparts.

Today’s criminal laws can be best understood in this historical context. Longstanding perceptions of Blacks as inherently dangerous, and their routine targeting for coercive state action, arguably paved the way for increasingly punitive criminal policies beginning in the late 1960s. This expansion in the reach of the carceral system included statutes and cases authorizing judges to make dangerousness predictions as part of the bail assessment. Traditionally, these predictions had been deemed contrary to the presumption of innocence derived from the Due Process Clause, with studies routinely showing that they could not be made accurately or reliably. Nonetheless, the DC Crime Act of 1970 and Bail Reform Act of 1984 empowered judges to “predict” dangerousness.

Beyond coordinating passage of the respective bills, Richard Nixon and Ronald Reagan premised their presidential campaigns on the absence of law and order in Black communities. This racialized fear-mongering justified considerable expansions in the scale of the carceral system through a series of increasingly punitive criminal justice policies. Dangerousness predictions did not merely emerge from this milieu, but effectively expanded the grounds for detaining people pretrial. As pretrial incarceration rates steadily grew, the disproportionate representation of Blacks further reified Black identities as inherently dangerous and deserving of racialized coercion.

Read in this light, differences in the progression of bail reform in California versus New York are not unusual. The decarceral bills originally introduced in both states stood to reduce pretrial populations dramatically. With Black people comprising a disproportionate share of these populations, outright release would have not only helped rectify historic and ongoing patterns of targeted coercion, but also eroded prevailing perceptions of Blacks as dangerous and challenged notions of the carceral system as integral to public safety. As Critical Race Theory indicates, when racial hierarchy is jeopardized, the dominant class will invoke alleged danger to communities and utilize the law to reinstate the status quo.

In California, after introduction of SB10, a working group convened by the Chief Justice issued a report that emphasized how the existing monetary bail system “unnecessarily compromises victim and public safety.” They recommended that it be replaced with a “robust risk-based pretrial assessment and supervision system.” Separately, in the case In Re Humphrey, the California Court of Appeal ruled that judges must assess individuals’ ability to pay to ensure that monetary bail is not set to accomplish preventive detention. Together, the report and case introduced a new metric for racial fairness—the elimination of monetary bail—while shifting attention away from the decarceral demands of grassroots coalitions. PRAIs, proposed as a logical and practical replacement for a monetary bail system, were integral to this shift. The problem of bail was recast exclusively as a matter of wealth, rather than carceral control of select communities. Meanwhile, the fact that PRAIs will function in the revised bill to sustain, if not increase, pretrial populations, entirely escaped investigation. Grassroots coalitions not only found their demands neutralized, but have themselves been cast as regressive for their opposition to a “racially fair” system conditioned on pretrial risk assessment instead of bail.

Coalition members in New York did not find their demands neutralized in this fashion. Although efforts were made to introduce dangerousness assessments into the bail statute, the coalition persistently framed such an addition as wholly antithetical to the primary objective of decarceration. Further, because the state had never authorized dangerousness predictions, the coalition was able to emphasize release as the primary metric of success, rather than the elimination of monetary bail or improved assessments of risk.

The ability of coalitions to accomplish their decarceral objectives thus turns on how they conceive and publicly frame the problem of bail. In jurisdictions like California, where bail is presumed to be integral to public safety, and coalitions do not challenge this belief, PRAIs can impede decarceration by shifting discourse and attention to the accurate assessment of risk. Yet when coalitions uncover the weak correlation between bail and public safety, and criticize PRAIs in this context, it is less likely that their decarceral aims will be compromised; solutions emerge that can erode the subordination of Black communities. The New York coalition effectively implemented such a strategy, and have potentially created a model of change that similarly situated coalitions can improve upon and pursue.

Sean Allan Hill II is a Research Fellow and Adjunct Professor of Law at Georgetown Law School.