Bail Systems as Wealth-Based Incarceration, or “No Money, No Justice”

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Champaign County Bail Coalition members help those arrested at the Marketplace Mall post bail in June, 2020, reducing their possible exposure to COVID at the jail. Photo by CCBC

The Eighth Amendment to the US Constitution prohibits “excessive” bail, a prohibition that dates back to English common law, and is largely honored in the breach.

In Champaign County Jail, on any given day this past winter, there were several hundred prisoners, most of whom were awaiting trial or sentencing rather than serving time. And this is typical. The Prison Policy Initiative estimated in a 2020 report that “Every year, over 600,000 people enter prison gates [to serve sentences], but people go to jail 10.6 million times each year,” largely to await bail or trial. Mass incarceration starts in county jails.

The ACLU, in its national drive for bail reform, has this to say: “After an arrest—wrongful or not—a person’s ability to leave jail and return home to fight the charges depends on money. That’s because, in most states, people are required to pay cash bail. Originally, bail was supposed to make sure people return to court to face charges against them. But instead, the money bail system has morphed into widespread wealth-based incarceration.”

Because of the research of New York’s Vera Institute, we have known for over 50 years that people jailed before trial are more likely to lose jobs and housing and face the destruction of family life. We also know that those out on bail do return for their court appearances. And people who come to court from jail are more likely to be convicted and, if convicted, to get longer sentences. We are talking disproportionately about Black folks.

A 2014 Brookings Institute report estimated that taxpayers shell out at least $22 billion a year for incarceration in local jails, above and beyond what is spent on people doing time in prisons.

Reform is long overdue. Nevertheless, even the right to bail has been significantly ignored in constitutional law, and such constitutional judgments as there have been are dead letters in protecting rights. United States v. Salerno (1982), in allowing detaining someone for public safety, added “in our society liberty is the norm,” with pretrial detention the “carefully limited exception.” In practice it has neither been carefully limited nor exceptional.

Little has been done at the state level until recently. However, in breakthrough criminal justice reform legislation sponsored by the Black caucus in the Illinois legislature and signed into law in February, a key reform was ending cash bail, the most comprehensive reform legislation in the country. ACLU Illinois and our local chapter, spearheaded for us by the late and much missed Bob Kugel, strongly supported these efforts.

The whole omnibus bill has been continuously attacked by the forces that sought to block it and now seek to discredit it, including judges and police associations, not to mention the fact that the United States is virtually alone globally in having a commercial bail industry. In the face of a flood of attack misinformation, it is worth understanding what its reforms actually mean.

The Pretrial Fairness Act, part of the overall bill, will eliminate money bail. For all misdemeanors and most felonies, release on one’s own recognizance will be automatic, and penalties for technical violations lessened. Those charged with violent felonies or who pose a risk to a specific person (as in domestic violence) will still have detention hearings.

The devil is as always in the details. The Coalition to End Money Bond fought hard against the use of current risk assessment algorithms as a tool for setting bail. Why? Because they are weighted against the poor. For example, risk is assessed higher if you don’t own a house! The current reform doesn’t eliminate this risk assessment approach, but it does mandate that risk assessment can’t be the only factor considered in detention hearings. Activist lawyers are cautious in assessing how the current bail reform could potentially be undermined in practice, given the hostility of some of the key stakeholders.

However, this reform doesn’t go into effect until January, 2023. In the meantime, our county is fortunate to have the Champaign County Bailout Coalition (CCBC). This initiative has its roots in the earlier mobilization Build Projects not Jails, part of the larger push for decarceration. Since its inception in April, 2019, CCBC has used a revolving fund to post more than $78,000 in bonds for more than 70 legally innocent individuals who were locked in a cage only for the crime of being poor.

As members of the Bailout Coalition tell us, “While failure to afford bail destabilizes the personal housing, employment, and family situations of the most economically vulnerable individuals in our county, the knock-on effect is broader instability [from the] defunding [of] Black communities and [the] investing [of] money siphoned through fines and fees into the carceral system.”

And when bail reform does go into effect, be prepared to see some sustained attacks on it, and the kind of statistical distortions that led to a rollback of bail reform in New York state after only six months. It’s not hard, for example, to define recidivism in terms of arrest records rather than convictions. Or to define COVID-19-era crime rates as a result of bail reform.

So this grass-roots effort will continue to need our support. If you would like to get involved in the ongoing struggle for pretrial justice and safe communities, CCBC meets on the second and fourth Thursday of every month.

Email for more details. Both volunteers and financial support are welcome.

Carol Skalnik Leff is president of Champaign County American Civil Liberties Union (ACLU) and former director of the Cook County Special Bail Project.

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