I recently came across an article that contained strong opinions about the current trend of states passing laws to eliminate cash bail and pretrial detention. The source in the article focused on extreme, isolated incidences where an individual while awaiting further court action, had been released from jail and went on to get into additional trouble on pretrial. I can see how this may be concerning, but instead of letting isolated incidents and hearsay be the primary source to draw a conclusion in this discussion, I wanted to dig deeper and explore what is driving this change in our nation in how we are approaching criminal justice reform by eliminating cash bail and pretrial detention.
The Purpose of Bail
Ideally, bail is meant to serves two purposes: 1. It maintains the American ideal that an individual is innocent until proven guilty. This way, their normal, everyday lives are not disrupted while they await further court action and until they have been found to be at fault (i.e. guilty) in the court of law after receiving their right to due process. 2. It fuels court fees and costs by incentivizing the accused to attend future hearings, or face financial consequences imposed and collected by the courts.
States Doing Away with Cash Bail
In recent years, a number of states have proposed and enacted laws eliminating cash bail. However, California was the first to completely eliminate this system. On Tuesday, August 28, 2018, Governor Jerry Brown, signed California’s Money Bail Reform Act into legislation. Before then, a number of states such as Kentucky, New Mexico, and New Jersey had reformed their cash bail system, however, California was the first to completely eliminate its cash bail system. Now, other states such as Illinois, Nebraska, Indiana, and New York have enacted bills to change their cash bail system.
New York is the newest state to eliminate pretrial detention and cash bail. Their law went into effect January 1, 2020, eliminating pretrial detention and cash bail for an estimated 90% of arrests. Under the new law, cash bail is no longer an option for most misdemeanors and non-violent felonies. For individuals charged with serious crimes like violent felonies, sex offenses, and witness tampering little has changed and the ability to enforce cash bail will still lie with the courts.
Clogging Up Our System
A primary reason many states who have made changes to their cash bail system have cited as why they have done so is because of the clogging up of their jails. Across our nation, states and federal systems are struggling to find space for all the incoming individuals being incarcerated.
According to the Prison Policy Initiative, more than 500,000 people in the United States were detained in jails before their trial in 2018. New Jersey was one of the first states to reform their cash bail system. In their first year with the new system in place, their pretrial jail population fell by 20 percent.
Kalief Browder: An Example of an Innocent Person Held in Pretrial Detention
Browder was a 16-year-old boy from New York City. He was accused of stealing a bookbag, and even though he was 16, he was sent to the notoriously violent adult jail, Rikers Island, while awaiting a court decision on his case. Kalief was not deemed a danger to society and was granted bail, but as he came from a poor family who did not have the money to pay his bail, he had to sit for three years inside of Rikers Island on pretrial detention awaiting the court’s ruling. While incarcerated, Kalief was beaten numerous times – by guards and other inmates, and placed in solitary confinement, where depression and anxiety started to consume this young man. He was ultimately found not guilty, but by then, the damage had been done. Kalief came home struggling with depression, anxiety, and PTSD from his experiences in Rikers Island. Two years after release, the lasting weight of that negative experience became too much to bear and he took his own life. After his sad passing, celebrities like Jay-Z and John Legend have advocated for reform to the cash bail system, citing Kalief Browder as a perfect example of what we cannot allow to happen in our justice system.
As with any law, there are issues that still remain. In addition to the fear propaganda cited in the original article that sparked me to write this post, advocates of equal justice believe that new, no cash bail laws, such as California’s Money Bail Reform Act, still give too much power to the courts. This continues to speak to the point of an individual not being allowed due process before being found guilty of a crime. However, even with these issues and ideas still to be worked out, there is no statistical evidence that eliminating cash bail and pretrial detention will result in crime increasing. Remember, changes in the cash bail system is not for all crimes. The changes that are happening are directed towards nonviolent crimes and petty offenses like misdemeanors, so do not buy into the false rhetoric that we are opening all our jails and letting out rapists, child molesters and murderers. That is simply not true.
We are making strides in the right direction. An American tenet is equal justice for all, and within that lies having the presumption of being innocent until proven guilty. There may be one-off instances of individuals abusing their rights and taking the opportunity to commit another bad act, but if we do not give this right to all we risk undermining our whole justice system and it being judged as unfair and biased towards the rich who can afford to exercise rights we should all be afforded, whether we have financial resources to exercise them or not. We are moving the needle in the right direction eliminating the cash bail system, but there is still work to be done before I can truly say that our American criminal justice system is fair and equal in its treatment towards all of its citizens.