Bail reform: Race, class play inordinate role now
For the classic board game of Monopoly, players can end up in “jail” by landing on the jail site or if they are unable to pay the fine when they land on another player's property. Players can languish in the jail location for a round or two as other players rack up more cash and property unless they have a coveted “Get out of jail free” card, or manage to borrow or mortgage their own property to raise cash to pay off their debt to another player. In that case, they're often left broke or behind in the game devoted to the rise of capitalism.
While the game of Monopoly was patented in 1904 as “The Landlord's Game” to illustrate the economic consequences of taxation, rent and economic privilege, it remains particularly relevant today, and continues to be played and enjoyed. It also has parallels well beyond its basic premise of real estate, as in the case of monetary use of bail being used as a determinant for release from jail as just one other example.
The definition of bail is a set of pretrial conditions that are imposed to ensure an accused individual will comply with the judicial process. Bail is the conditional release of a defendant with their promise they will return and appear in court when required.
In the United States, as in several other countries, bail usually means bail bond – an amount of money deposited with the judicial system, in part or whole, which the defendant will receive back when they return to court. If they don't return to court, the bond is forfeited and they may be brought up on further charges, such as failure to appear.
“The goal of cash bail is to act as an incentive for people who are not in jail to get them to return pretrial,” said Aurélie Ouss, assistant professor of criminology, University of Pennsylvania. “There are a lot of issues for people being in jail pretrial – they have a greater chance of conviction (at trial), there are greater inequities of who is in jail, because some can't pay bail, and it is difficult for people of color and those who are poor.”
There can be a variety of criteria to determine the amount of bail: is the defendant accused of a violent and/or dangerous crime? Do they have a history of violent crimes? Is the individual considered a flight risk? Is the suspect accused of a felony or a misdemeanor?
“I believe jails and prisons are for people we are afraid of and not just we are mad at,” said Wayne County Sheriff Benny Napoleon. “If we are afraid of them, we incarcerate them.”
Unfortunately, Napoleon said, “Americans are in love with incarceration. We over-incarcerate.”
“We have a lot of people in jail because they don't have $500 or $1,000, but they're not a flight risk to leave the community, and they're not a danger,” pointed out Oakland County Sheriff Michael Bouchard. “A whole bunch of people are not a physical risk or a flight risk, and for those folks we ought to craft legislation to change that.”
Bouchard noted that the issue surrounding bail reform is both a social issue as well as a law enforcement threat, because unless courts “look at their history, some will make bail for sure” who are dangerous, he said.
Experts point out $1,000 bail for someone who couldn't afford to renew their driver's license and therefore is driving without a valid license – a misdemeanor offense – can be unsurmountable and cause that individual to languish in the county jail for days or weeks. On the other hand, a $25,000 bail request for a defendant charged with a violent offense who has a high-paying job, access to credit cards and savings and investment accounts will likely be out on bond within a day.
In early November, Detroit Police Chief James Craig stated that bail reform is causing crime to skyrocket in big cities like Detroit, Chicago and New York, citing October 2020 figures for homicides and non-fatal shootings in Detroit that are up over 2019. While Craig said he supported bond reform for nonviolent offenders, he was seeing people in Detroit with violent histories being arrested with illegal guns and other offenses released as nonviolent offenders, and said he did not considered people arrested with illegal guns nonviolent offenders.
“Often we arrest people illegally carrying a firearm who are already out for carrying a firearm. They clearly have the intent to illegally conceal the use of the firearm. Often they're stolen,” Bouchard asserted. “These weapons are not clothing accessories and they're there in case they want to use them.”
“From my perspective, the criminal justice system has been broken for a long time. There is a desperate need for reform, including bail reform,” he said, noting he has been in law enforcement “46 years next April,” and is a lawyer and educator as well as a county sheriff. “We've been doing the same thing in this nation for all that time. We've had the War on Drugs, get tough on crime, three strikes you're out – and they haven't worked and they're not going to work. In my opinion, we haven't gotten to the root of the problem – you're not getting to better education and early education. We know that is the root of the change for a kid who comes from a poor school system. We can tell they're going to fall through the cracks by third grade. So they turn to something else and we have never addressed that.
“We know the problem for the people in jail and prison are disproportionately people of color, disproportionately people who are poor, and disproportionately people with bad education,” Napoleon continued. “I can't help that you're born Black or Brown. I can't help that you're born poor. But we can help to insure you're given a good education. It will lift you up from circumstances and change your life. It can help you get a job and lead you to success. It changes your world forever – it breaks the cycle of poverty.”
New York state passed a reform bill in 2019, effective January 1, 2020, which completely abolished bail for many misdemeanors and nonviolent crimes, reserving cash bail and pretrial detention for those accused of felonies. In April 2019, when it passed, Gov. Andrew Cuomo called it, “the most historic criminal justice reform in modern history in the state.”
However, like Craig, the New York Police Department claimed the changes were responsible for a significant spike in crime, asserting the streets were being flooded by dangerous repeat offenders. In April 2020, New York state lawmakers, under Cuomo's direction, passed a bill reversing the bail reform, while still giving judges more discretion, an expanded list of charges and situations, more options for ordering non-monetary release conditions, new public reporting conditions and knowledge about a defendant's history.
“When New York City instituted supervised release in all five of its burroughs,” said Watoii Rabii, professor of criminal justice at Oakland University, “there was between 85 and 92 percent court appearance rate. And for those not getting further arrested, it was between 91 and 92 percent.”
“Even amended, the bail law will continue to sharply reduce pretrial detention when compared to the pre-reform era,” stated a summary from “Bail Reform Revisited: The Impact of New York's Amended Bail Law on Pretrial Detention” by the Center for Court Innovation. “Approximately 84 percent of New York City criminal cases arraigned in 2019 would have been ineligible for bail under the amended statute; and the amendments still allow for an estimated 30 percent reduction in the city's jail population when compared to the absence of any reform.”
“I know of no credible research showing that bail reform has led to an increase in violent crime,” said criminology professor Richard A. Berk at University of Pennsylvania. “The recent increases in homicides in some cities may have far more to do with COVID-19 hitting disadvantaged communities especially hard (making inequality even worse), public health interventions such as quarantines, and changes in police and prosecutorial practices.”
Rabii concurred. “There is no data supporting an increasing of the crime rate of low level offenders re-offending and increasing the crime rate,” he said. “A lot of no shows (to pretrial) are people who cannot afford to take off from work. A lot of people have medical issues, and people forget about court dates.”
Rather, he said, “race and class play an inordinate role. In the United States criminal justice system, there is a long history of discrimination against people of color and people who are poor. Because the costs of bail are often high, it tends to fall disproportionately on people who are poor, and people of color tend to be less likely to be released on their own recognizance. Twenty-five percent of Black and Brown people are more likely to be held in jail pretrial than their White counterparts. So poor people of color tend to be saddled with these costs. Black and Latino individuals without a record fare worse than their White counterparts with a record, and people of color with a record fare much worse.”
Rabii said there is research which shows that there is evidence in some cases of implicit bias, which are the attitudes or stereotypes which influence and affect our understanding, actions and decisions in an unconscious manner, in use of bail. “African Americans and Latino individuals are more likely to be perceived as a danger to citizenry,” he said, and therefore, receive an amount for bail they cannot afford. They then sit in jail pretrial, with jobs, health, rent, car payments and family relationships all at jeopardy.
“About 41 percent of inmates in the state's county jails, or about 15,000 people, are in jail because they can't pay their bail, not because of the nature of their crime or because they're a flight risk. It's simply because they can't pay their bail,” said Alex Rossman, external affairs director, Michigan League for Public Policy, an organization whose mission is advocating for people with racial and financial inequities.
“A growing body of research suggests we do much more harm than good by holding individuals pretrial,” said Sandra Susan Smith, professor of criminal justice, Kennedy School of Government, Harvard University. “Pretrial detention has been shown to dramatically increase the likelihood that individuals will reoffend in the short and long term. This is true even for low-risk defendants held on low level offenses. In other words, through pretrial detention, the state is essentially creating recidivists out of a not insignificant number of individuals who would likely not have further criminal justice involvement were it not for detention.”
“It's a huge concern of ours – holding people who have yet to be found guilty,” Rossman said. “It's a modern iteration of debtor's prison, which was ruled illegal years ago by the Supreme Court. So many people are kept away from their families, their jobs, where they can't earn money to pay their bail.”
The Michigan League for Public Policy is part of the Michigan Collaborative to End Mass Incarceration (MI-CEMI), said league president and CEO Gilda Jacobs. MI-CEMI is a local collaborative of over 50 organizations, from the ACLU, Michigan Women's Justice and Clemency Project, Safe and Just Michigan, Public Action Committee for Justice, churches and other advocacy groups, working to reduce the number of people entering jails and prisons; reducing the length of their sentences and stays in prison and jail; ensuring conditions of confinement are conducive to genuine rehabilitation; increasing the number who are safely released from jail and prison; adequately preparing and supporting those who are released so they can be successful; helping to reduce the stigma that prevents many who have been incarcerated from securing housing and employment; and reinvesting any savings from reductions in incarceration back into the most impacted communities.
Rossman noted that “every aspect of the criminal justice system breaks down on both racial and economic lines. We see Black and Brown people receiving not just more punitive bail, but more severe penalties at sentencing, and it's why we want to make these changes, to make it a more equitable system. It starts with Black and Brown people being more likely to be pulled over by a police officer, Black and Brown people are more likely to get some kind of a ticket, and then more likely to be detained. Bail is just another part. It's not that they are more likely to be victims, but there is an overrepresentation of Black and Brown individuals held with bail.”
In Massachusetts, private charities such as the Massachusetts Bail Fund, which opposes cash bail on principle, has raised significant funds since the May 25 murder of George Floyd in Minneapolis by a police officer kneeling on his neck for almost nine minutes. Floyd was apprehended for the misdemeanor of uttering and publishing – he had allegedly passed a counterfeit $20 bill. Within two weeks of Floyd's death, Minnesota's largest bail fund, Minnesota Freedom Fund, a community-based non-profit that said it seeks to combat the harm and discrimination of incarceration by paying bail, received more than $31 million in donations so that arrested protestors could be bailed out. The fund has used the funding to help other nonviolent detained defendants as well.
The Massachusetts Bail Fund shows up at jails across the state and posts bail for pretrial prisoners. The fund's fundamental premise is that bail discriminates against the poor by keeping them locked up until their day in court, thereby interfering with their ability to work or prepare for their trial. The only purpose of bail, they point out, should be to make sure defendants show up for trial. And they said the people they bail out overwhelmingly do.
On November 3 of this year, Californians failed to pass Proposition 25, which would have affirmed a 2018 California law to end cash bail throughout the state, with 55 percent of the electorate opposing the measure.
Proposition 25 was considered a referendum on a law that former Gov. Jerry Brown had signed in 2018, which would have replaced the cash bail system with a risk-based algorithm. While advocates for the campaign were heavily subsidized by a group of billionaires, as well as current Gov. Gavin Newson, the main opposition came from the American Bail Coalition, a trade association of national bail insurance companies.
Civil rights advocates were also very wary of an algorithm determining the fate of individuals.
“Computer models may be good for recommending songs and movies, but using these profiling methods to determine who gets a loan has been proven to hurt communities of color,” wrote Alice Huffman, president of the California State Conference of the NAACP. Algorithms involving artificial intelligence, or AI, have had a recurring issue throughout the country recognizing and differentiating persons of color.
The American Civil Liberties Union (ACLU) filed a federal class action suit against judges in the 36th District Court in Detroit in April 2019, because “Tens of thousands of people in Michigan are locked up in jail, before being tried or convicted of any crime, because of cash bail. Throughout the state, it is common for judges to require people who have been arrested to post cash for their release – in other words, to buy their freedom – or else remain incarcerated while they await trial, even for very minor charges. This practice is unconstitutional because it creates a two-tiered legal system in which the freedom of a person who is presumed innocent depends entirely on their ability to afford bail, a clear violation of due process and equal protection.”
The judges filed a motion to dismiss the case in June 2019, and in August 2019, it was put on hold to allow both parties to engage in settlement talks. The suit currently remains on hold.
In Michigan, the release and detention decision and bail determination is decided by local judges, with little guidance or uniformity. As noted in the Michigan Joint Task Force on Jail and Pretrial Incarceration report, issued January 10, 2020, “Money bail may be imposed for any criminal offense, and courts receive little statutory guidance on which pretrial conditions to impose. This has led to release and detention procedures that vary widely among counties. People who may pose no danger to the community can be detained before trial on bond they are unable to post, even for relatively low amounts. Conversely, defendants charged with more serious or violent crimes, or who otherwise may pose a significant risk to the public pending trial, can be released if they can post the bond set by court… These courts are further concluding that when money is the deciding factor between those released and those detained, defendants without access to resources are deprived of equal protection of the laws.”
“We're holding a lot of people because they missed a court date, they didn't have a valid driver's license, or owed money, were in a contempt category,” said Tom Boyd, state court administrator, Michigan Supreme Court. Boyd served on the Michigan Joint Task Force in his previous capacity as a district court judge. “The vast majority of people in district court are for misdemeanors. Some people though are evil – there are horror stories out there. But that is infinitesimal. The data screams we're not protecting anybody from anyone. But what damage did we do to their life? The correlation between danger and wealth only protects us from the poor.”
The Michigan Joint Task Force on Jail and Pretrial Incarceration was led by Lt. Governor Garlin Gilchrist and Michigan Supreme Court Judge Bridget McCormack and included 19 others, from county sheriffs, county commissioners around the state, state senators and representatives, judges, prosecutors, Attorney General Dana Nessel, correction officials and a social work college dean. The task force was established by executive order by Governor Gretchen Whitmer in February 2019 with the goal of developing ambitious, innovative, and thorough recommendations for changes in state law, policy, and appropriations to expand alternatives to jail, safely reduce jail admissions and length of stay, and improve the efficiency and effectiveness of Michigan’s justice systems.
“What we've seen over the last 30-plus years, even as Michigan has been a national leader in terms of reducing the number of people in state prisons, we've seen a significant increase of people who are at county jails as we've seen the number of crimes decrease for violent and nonviolent crimes,” said Lt. Governor Garlin Gilchrist. “Jail is the front door to the system of mass incarceration in our state and our country. We can safely reduce the jail population in a way that maintains public safety and also prepares people to be successful in life, that actually serves them better than the jail cell serves them.”
He said the task force took a comprehensive look to safely reform the system, top to bottom.
“There's never been a deep dive – who's there, how they got there, for how long and what measures can we enact to keep them safe for public safety,” Gilchrist said.
Gilchrist said they started by looking at the populations in local county jails, which are basically holding cells for local municipalities and county sheriffs, and for district and circuit courts prior to sentencing after being found guilty at trial, when they head to state prison.
“We found that 50 percent of people in jail are there for something like a suspended license,” Gilchrist said. “It's somewhat overlapping, but about 50 percent are there pretrial or awaiting trial. We're seeing all these people in jail because they have had a failure to pay. Jail is not a way to get people to pay a fine. They cannot go to work. This is insane. There were many things we were able to see and understand. It was alarming. That really guided the task force.”
“If you put them in jail for six days, and they lose their job and car, then you've defeated the whole purpose of helping the person,” Boyd pointed out. “In bail reform, we spend a lot of time holding people who are not dangerous. If you only use money as a barometer, then often times you release the wrong people, only because they have money.”
In the task force report, it stated that traffic offenses accounted for half of all criminal court cases in 2018, and “driving without a valid license was the third most common reason people went to jail in Michigan. Other common reasons ranged from theft, drug possession, and probation violations to more serious charges like domestic violence, drunk driving and drug sales.”
In less than 40 years, it stated, the number of people held in Michigan's county jails have almost tripled – while at the same time, crime rates have dropped to 50-year lows. The daily average population in 1975 was 5,700. In 2016, the daily average population of Michigan jails was 16,600.
“The state's jail growth did not track with crime trends, increasing both when crime was going up and when it was going down,” the report said. “In the last decade, index crime rates have fallen to the lowest levels experienced in more than 50 years, yet jail populations remain high. The state's jail growth was driven equally by incarceration of pretrial defendants and those serving a sentence post-conviction.”
Of the demographics, the report noted, “Black men made up six percent of the resident population of the counties included in the task force's sample of jails but accounted for 29 percent of all jail admissions… Driving without a valid license was a more common reason for jail admission among Black people compared to White people, and the opposite was true for operating under the influence.”
While men had outnumbered women nearly six to one in Michigan jails across the state, over time the female jail population has been growing at a much faster rate.
Members of the task force found great concern with the number of people admitted to jail with mental health disorders, the report said, with screenings of jail admissions estimating that 23 percent of those entering jails had a serious mental illness, with higher percentages in rural counties where community-based services are scarce. This population also tended to stay in jail longer.