Revoking Cash Bail

Written by Ronnie Aymin

Article from WARTIME Issue No. 4

Angela Davis once said, “I am no longer accepting the things that I cannot change. I’m changing things that I cannot accept”. 

This profound statement has to make up the mindsets of those willing to do the work to contribute to the upliftment of our community, while protecting it from the forces, the systems and the beliefs that undermine, exploit and devalue our existence. With this work, there is no more grin and bearing it or quietly enduring. From here on out, we are identifying those things that are in opposition to our health, our liberty, our dignity and our right to exist and then we are on that ass. Awareness, strategy and mobilization…it’s go time! And it is no secret that one of the biggest representations of injustice that exists against our community is the American “criminal justice” system.

Presented as a system that establishes and maintains balance and order within our society by promoting safety and accountability, the actual contours and complexion of its composition reveal a face that more closely resembles degradation and dehumanization. The origins of this supposed “justice” system lie in the suppression and control of poor and marginalized groups in favor of those in power. America’s capitalistic aspirations are intrinsically tied to and informed by its racialized history. One of the ways that this truth is displayed is within the American cash bail system.

When an individual is accused of a crime and arrested by police, they are then detained in jail. Subsequently, the accused is granted a hearing before a judge to determine the conditions of bail. Bail is stated to serve as an insurance policy to guarantee the accused returns to court throughout the processes of prosecution and adjudication. If bail is paid, the accused is permitted to return home and resume their life throughout the legal process. If not granted bail, they will be forced to languish within the jail, suffering the hardships that result from the conditions of confinement. 

The issuing judge essentially has three options: The first option is that they can release the accused based on their own signed recognizance. That just means that an individual signs a document stating that they will promise to engage in the process by returning to court for scheduled hearings throughout the process. The second option is to issue a cash bail which requires the individual to pay a stated amount in order to be released from confinement. If the amount is paid, and the individual attends all of their hearings upon the completion of the case, that money is returned to the individual. The last option is that the judge does not grant bail and forces the accused to remain in custody.

Because cash bail penalizes the poor, it is a miscarriage of justice. When an individual is accused of a crime, they are “innocent until proven guilty.” However, if an individual is poor and doesn’t have the money or resources to secure their release, they must suffer the undue consequence of incarceration. Those negative effects can prove to be detrimental and sometimes fatal.

Imagine living paycheck to paycheck with all of your money going to feed your family, pay housing related expenses and car payments.  Incarceration for any amount of time, let alone for prolonged periods, can disrupt your family and create lasting harm. If you can’t work, you will lose your job.

If you have no income, your bills can’t get paid. If you can’t pay your bills, you lose your home and car. If you are a single parent, your children will have to rely on someone else to raise them or they will be taken by the state. If you suffer from some type of medical condition, it is likely that you will not get the type of attention and treatment you need throughout your incarceration, thus worsening your condition.  If you are innocent until proven guilty, which you are according to the law, why should you have to endure such an agonizing experience? We haven’t even mentioned the severe psychological toll incarceration imposes upon detainees. 

Such was the case of Kalief Browder, a teenager that spent three years on Rikers Island, after being accused of stealing a book bag. During his imprisonment, he suffered extreme psychological and physical abuse by state actors. The effects of his confinement lingered and ultimately contributed to his suicide even after his eventual release. Incarceration is a violent act that damages an individual. However, the practice of cash bail not only adversely affects the individual and destabilizes their family but it also undermines and weakens our community. This has got to be by design by forces that mean us no good.

According to a report conducted by the Brennan Center for Justice, 2/3 of people who go to jail in this country live below the poverty line and incarceration only perpetuates that inequity.

The Federal Reserve has cited that 40 percent of Americans can’t afford to come up with $400 in an emergency. The cash bail system not only punishes the poor but it unfairly targets people of African descent. The racial disparities that exist in every sphere of the society are definitely present here, in St. Louis, Missouri.

After the killing of Michael Brown, a Black teenager, by a white police officer, St Louis’s predatory policing was exposed for the world to see. The year after his killing, the US Department of Justice investigated the Ferguson Missouri Police Department and the findings were presented in The Ferguson Report (2015).  TheReport stated that Black folks comprised 85 percent of the stops made by police, 90 percent of the people cited for infractions and 79 percent of those arrested. The “Close the Workhouse” campaign, led by community organizers and activists in St Louis, found that the median bail is $25,000 and per capita income is approximately $27,000.  But St. Louis and Ferguson aren’t exceptions. The 2018 Economics of Jail and Pretrial Detention Report found that black and brown people all over the country are more likely to be arrested, more likely to get assigned bail and less likely to afford it.

When individuals cannot afford bail but desire release, there is the option of utilizing a bail agent. A bail agent is a private and/or commercial entity that typically charges the accused ten  to 15 percent of the total amount of the bail. This money is not returned to the accused even if charges are dropped or the case has been adjudicated and they were found not guilty. This is another area in which the exploitative nature of racial capitalism is exposed. 

The Brennan Center for Justice also found that those held in pre-trial detention are four times more likely to be sentenced to prison than defendants released prior to trial. They cited that pre-trial detainees are also more likely to make hasty decisions to plead guilty to lower charges and spend less time behind bars rather than chancing a higher charge and longer sentence at trial. This is a common tactic of prosecutors. As a matter of fact, 95 percent of all criminal cases in the US are plea bargained and not taken to trial. They have exploited the fact that an innocent person would rather claim guilt to get out of confinement than suffer the pains of incarceration for a longer period. Those desperate decisions have lasting consequences that aren’t often considered in the time of crisis. A conviction will follow them for the rest of their life affecting housing, employment, school, parenting and other major components of life for the individual.

Because this has always been the model in the U.S., it is difficult for people to imagine an existence without mass incarceration, predatory policing and cash bail. Even though the United States is one of the only countries in the world that participates in cash bail, there are exceptions. In 1992, the District of Columbia abolished cash bail and still saw a 90 percent response rate for people who had been arrested and faced charges. People still showed up for court without the so-called insurance or lost-avoidance incentive. And that number is not a fluke.

With the motto, “Freedom should be free,” The Bail Project, is a national organization that works to “combat mass incarceration by disrupting the money bail system.”  Working with a coalition of local, state and national organizations, their efforts address the bail crisis by bailing out thousands of low-income people every year. When free, the organization supports those individuals by helping them manage court appearances and connect participants with resources to help them function and address various needs. The work of the Bail Project has been overwhelmingly successful. They, too, have achieved a 90 percent success rate, just as the District of Columbia has done. 

Cash bail is not needed to ensure that someone returns to court after an arrest. Cash bail does not benefit  the community, as it ensures that taxpayers are on the hook for the functioning of overcrowded jails and the funding of predatory policing. The existence of organizations like the Bail Project, demonstrate the power we have when we utilize the voices and organization of the people to address and combat the systemic harms inflicted upon us by oppression.  We have the power to resist but we have to start by reimagining. We must be curious about this moment and stand to meet the challenge.