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. Continue reading