California has seen a wave of bail-related reform, though most efforts were localized. The new San Francisco district attorney is a former public defender who opposes cash bail. UCLA School of Law students help public defenders in Compton get defendants released on their own recognizance. The most prominent statewide measure, SB 10, would eliminate cash bail — but fail to free defendants without a judge’s agreement. It would also impose new, probation-like conditions, such as drug testing, electronic surveillance, and curfews, on defendants who remain unconvicted of any crime. Voters wil decide this via a referendum in November.
As SB 10 illustrates, not all bail reform efforts are equal. Indeed, some reforms even threaten to reproduce the injustices of cash bail by other means. In order to address and curb these missteps, The Bail Project recently released After Cash Bail, a report detailing how reforms can best introduce new systems that support genuine justice, like administrative court reforms and restorative justice initiatives.
LARB spoke with Robin Steinberg, the founder and CEO of The Bail Project, about the reforms that are going wrong, those going right, and how the ongoing COVID-19 pandemic makes these questions all the more urgent.
ARVIND DILAWAR: How does the ongoing COVID-19 pandemic make cash bail reform that much more necessary?
ROBIN STEINBERG: The public health case for bail reform and pretrial decarceration has never been more clear and urgent. The jail health-care crisis is already alarming, with hundreds of people dying in overcrowded jails each year due to suicide and illness. With the COVID-19 pandemic, we’ll be facing nothing short of a humanitarian crisis in jails across the United States if government officials don’t act quickly and humanely, and focus on releasing people rather than further isolating them.
Our teams have been working around the clock, calling on court and city officials to release as many people as possible, while adjusting our operations to protect against the possibility of inadvertently carrying COVID-19 into a jail. To that end, we’re coming up with ways to conduct jail interviews over video and phone, so we can continue our bailouts nationally as soon as possible, and we will also be providing support to jurisdictions like Cook County [in Illinois], doing emergency group releases.
What types of electronic surveillance is The Bail Project seeing employed instead of cash bail? How is such surveillance reproducing issues of injustice?
Right now, we’re seeing pretrial electronic surveillance, be it through an ankle monitor or phone app, in most of the cities where we work. More often than not, these pretrial restrictions are imposed on people at a cost — and remember, many of these are individuals who could not afford cash bail in the first place. Beyond the economic cost, wearing an ankle monitor is a dehumanizing experience. It harms people physically and psychologically. These are individuals who are still presumed innocent under the law. As we write in After Cash Bail, the way to end cash bail and limit pretrial incarceration is not by expanding its virtual counterpart.
Is it possible to generalize about the state of cash bail across the United States today?
Americans recognize that putting a price tag on the presumption of innocence is fundamentally unjust. National polls indicate that most people want to see some type of bail reform, as well as investment in alternatives to incarceration. States such as California, New Jersey, and New York have already taken steps to limit or ban wealth-based detention, while smaller jurisdictions are advancing reforms through district attorneys’ offices and judicial orders. But while there is growing momentum to eliminate cash bail, there is little consensus on what replaces it. After Cash Bail offers five principles for evaluating the merit of nearly any legislative proposal.
Opponents of bail reform have used the rare cases of those diverted from pretrial detention committing new crimes as “evidence” of bail reform's failure. How does The Bail Project respond to such arguments?
For every case that gets exploited as an example of bail reform gone wrong, there are tens of thousands of stories of people returning home to their families and communities safely, and rebuilding their lives. That is why we should never legislate around the exception. For every hypothetical “what if,” there is actual evidence of the harms of pretrial incarceration to the millions of people who churn through American jails every single year. And not only that, research is also clear that pretrial incarceration actually increases the likelihood of rearrest and recidivism. The solution is to stop resorting to jails as the default response to every social problem. It is counterproductive. Instead, let’s invest in alternatives that actually help break cycles of poverty and incarceration. Bail reform is a first and necessary step in that direction.
Bail reform is ultimately about protecting the bedrock principle of the American legal system — the presumption of innocence — and ensuring that it applies to all of us equally. Remember, we are talking about the government’s power to take away your liberty before a court of law has determined guilt or innocence. More precisely, we’re talking about whether this should depend on how much money you have. We need to ensure that pretrial detention, if at all used, applies only in the rarest of circumstances and as a matter of last resort.
It seems like the movement to end cash bail has gained a fair amount of momentum, but that reform measures are all over the place, in terms of equity.
The Bail Project has demonstrated unequivocally, through over 10,000 bailouts, that cash bail is not needed. We have provided free bail assistance in more than 20 cities, and time and time again our clients come back to court — not because they have a financial obligation, but because they receive effective court reminders and the types of support that anyone would need to overcome the challenges that poverty creates in this situation, such as lack of transportation or child care options when you have a court date.
However, demonstrating that cash bail is based on a myth only gets us half way there. We must also eliminate racial and economic disparities in how our criminal legal system operates in the future. We need to ensure that incarceration before trial is the carefully limited exception and only used as a matter of last resort. After Cash Bail lays out a roadmap for how to begin that process.
How is The Bail Project seeing cash bail reform go wrong?
Cash bail is but a symptom of a larger systemic problem: our country’s overreliance on jails and handcuffs as the default response to issues of poverty and public health, and the criminalization of people of color and marginalized communities. Eliminating cash bail without addressing these larger issues will lead to new ways of creating the same outcomes. The rise of pretrial algorithms is a perfect example of this. Similar to cash bail, these tools upend the presumption of innocence by reducing a person to group data (instead of a dollar amount) and turning a statistical prediction into evidence that can be used to take away your liberty. In addition, by relying on criminal justice data that is riddled with racial and economic disparities, they codify the very inequities that the use of cash bail perpetuates. In addition to pretrial algorithms, we’re also very concerned about the growing use of electronic surveillance in this context, which creates yet another form of punishment before trial. After Cash Bail has a significant section dedicated to this.
How is The Bail Project seeing cash bail reform go right?
Cash bail reform will be most effective when coupled with larger pretrial reforms that protect due process rights, like in New York State, and meaningful investments in alternatives to incarceration. One of the most promising efforts I see is right here in Los Angeles through the Alternatives for Incarceration Work Group created by the L.A. County Board of Supervisors. Working in partnership with community stakeholders, they came up with over 100 recommendations for transforming Los Angeles’s criminal legal system through a health- and community-based approach. This type of work is critical as a foundation for the long-overdue decarceration of America and investing in low-income and under-resourced communities.
What reforms protecting due process rights have been enacted in New York State? How do these advances dovetail with bail reform?
In the case of New York, it was critical to accompany bail reform with changes to the discovery and speedy trial process. While the bail reforms were designed to ensure most people would not be subject to cash bail, this was far from being the only way due process rights were being systematically violated. New York’s former discovery law was known as the “blindfold law” for a reason — it could literally keep you in the dark about the evidence that was being brought against you in a criminal case and force you to decide blindly between accepting a plea bargain or going to trial. In addition, there were systemic court delays that effectively denied you of your day in court. Bail reform was necessary, but not sufficient on its own.
Arvind Dilawar is an independent journalist whose work has appeared in Newsweek, the Guardian, Vice, and elsewhere.