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What Comes After Money Bail? An LPE Perspective on Pretrial Detention


Jocelyn Simonson (@j_simonson) is Professor at Brooklyn Law School.

This is the first post in our series on Money Bail. Click here to read all posts in the series. 

It is no longer controversial to say that our current system of money bail is flawed. When more than 400,000 people are incarcerated pretrial at any one time—a majority there because they cannot afford the amount of money that a judge has set—we are doing something wrong. Money bail is a stark and prominent indicator of how the criminal legal system punishes based on poverty, and by extension, race. And so, with a tentative consensus that there is a problem, we are well into a “third wave” of bail reform throughout the United States.

But what comes after money bail? As we think about pretrial detention, incarceration, and the criminal legal system more broadly, how can we widen the scope of our thinking beyond the relatively simple idea that money bail is unfair to poor people to larger imagining about the harms of pretrial detention and even criminal adjudication itself? This week, the LPE Blog will feature a series of posts that get at that question through a combination of critiquing current responses to bail reform and prefiguring a freer world without money bail. The goal is not to put forth model reform proposals, but rather to push for a larger vision of how the state provides safety and security in the face of both harm and structural neglect, and to connect that vision to our systems of money bail and pretrial detention.

The consensus that the institution of money bail is flawed is not limited to left-leaning jurists, advocates, or organizers, although we would not have reached the current wave of state and local bail reform without the long-time organizing of those on the ground. In 2018, Judge Edith Brown Clement, a conservative once thought to be a top contender for a Republican-appointed Supreme Court seat, explained the widespread sense of injustice this way:

Take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent . . . One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart.

In this decision, Judge Clement found that Harris County’s bail practices violate the Equal Protection and Due Process Clauses, naming money bail as an “instrument of oppression.” Judge Clement’s opinion was a big step for Equal Protection jurisprudence. We are potentially even at the dawn of a broader “constitutional crisis” for the institution of money bail: an acknowledgment that bail not only incarcerates based on poverty, but also eradicates the presumption of innocence, assuming criminality and guilt without adequate process.

But the political economy of money bail goes deeper than Judge Clement’s fable of the rich person and the poor person assigned to different fates. Instead, money bail should tell us a story of what Angela Harris has located as the “slow violence” of the criminal system, a violence that extracts wealth from segregated communities of color over generations only to reveal itself later through incarceration for failure to pay fines, fees or bail, a violence that must be analyzed as a problem at the intersection of race, class, and geography. And, as the Movement for Black Lives elucidates in its eye-opening 2016 Transformative Bail Reform Curriculum, money bail cannot be fully understood without placing it within the historical context of the criminalization of blackness and the monetization of freedom, reaching as far back as the transatlantic slave trade and the practice of slaves buying their freedom. These structural forces then reinvent themselves in court as determinations of “high risk” of flight or threats to “public safety,” leading to a monetary number being put on the freedom of an individual person.

In this week’s symposium, two important themes emerge from an LPE perspective on pretrial detention. The first theme is an insistence on examining money bail within larger systems of structural inequality and the carceral state. This is, after all, a core part of the LPE project: to examine how law mediates economic and racial inequality in ways that seem natural or needed, and to move toward democratic alternatives that push back against these longstanding ideas. For if we do not contend with the underlying structural and historical problems that emerge from a deeper analysis of money bail, then we will find ourselves either at a deadlock or at a gradual circle back to the problems that got us here. We will find ourselves using Risk Assessment Tools (“RATs”) that naturalize racial, economic, and gender hierarchies into judgments of risk. Or, even without RATs, we will find ourselves pointing to seemingly neutral facts—a person’s prior record, a charge of “violence,” a lack of “community ties”—and subject someone to incarceration before conviction based on the slow violence of the past.

The second theme is a shared conviction that we cannot let the question of what comes next become a technocratic enterprise. For the call to end money bail unearths an ironic truth: that money bail is itself a form of public participation, a moment of outside intervention in an expert-driven process. I have written elsewhere about how grassroots organizations are pushing back against the dominant ideas of “public safety” and “community” that sustain pretrial detention, in part through the collective act of posting of bail via bail and bond funds. The ability of a community group to post bail can be a powerful moment of reclaiming collective agency and redefining public safety, even as the institution of money bail is at the same time a force of oppression. As a result, to move beyond money bail requires thinking carefully and openly about who is on the receiving end of any shift in power and decision-making in bail reform. Will it be blue ribbon commissions, secret algorithmic codes, enlightened judges, “progressive” prosecutors? Or will we remember the lessons that have led us to this “third wave” of bail reform? It is by shifting power and recognizing the expertise of the communities most devastated by mass incarceration that we can begin to hear and imagine other ways in which the state can provide safety and security.

The posts in this week’s symposium take on both of these themes: they examine the problems of money bail and pretrial detention as those of deep structural and historical inequalities, and they push us to listen to the imaginations of social movements on the ground working toward change. Last month, the newly elected District Attorney of Queens, Melinda Katz, unknowingly reminded us of the urgency of this project. Katz campaigned on a pledge to stop asking for cash bail in most criminal cases; now that she is in power, however, she has changed her mind, saying, “I do believe it deep in my heart . . . that cash bail is unfair, it’s inequitable, . . . [but] we are not there yet.” We are not there yet. In order to get there, we need to do the ideological work of imagining how “public safety” can be provided not just without bail, but also without pretrial detention, and, as some posts this week suggest, perhaps without incarceration altogether.

In recent weeks, popular discussion about bail reform has been loudest in New York, where legislation that requires mandatory release without bail for some “low-level” offenses went into effect in January. As a result, the number of people incarcerated pretrial has already declined throughout the state. At the same time, the media, white supremacists, and politicians from both sides of the aisle have targeted the new legislation with misinformation, hyperbole, and racist insinuations. But the debate in New York (which I myself have waded into) also reflects the paucity of our current discourse around bail, reduced to questioning whether people with mental illness should be locked in cages or whether we should condone images of black criminality for “non-violent” offenses.

This week’s symposium is an attempt to break us out of this level of discourse. It continues tomorrow with an abolitionist critique of the New York legislation from the organizers at Survived & Punished NY. Future posts from organizers and leaders of bail funds will lay out a grounded account of how we might move beyond thinking about ending money bail to thinking about questioning pretrial detention more broadly, complicating how we think about community bail funds in our current moment. And two academics, Sean Hill and Sandra Mayson, each with experience working and writing about bail reform, will further push us toward new critiques and questions. Taken together, the hope is to fuel the writing of a new fable, not by contrasting a rich man and a poor man, but by contrasting existing discourse with new accounts of freedom and safety.