Sandra Bland, Khalief Browder, and Janice Dotson-Stephens aren’t just names chanted at Black Lives Matter protests. They all became martyrs after being forced into a deadly confrontation with the nation’s criminal justice system. Like too many, they fell victim to the injustices of a widely used cash bail system that turns poverty or an individual’s hard time into yet another tool of punishment.
These contemporary examples are nothing new. Over the decades thousands have suffered similar fates. So while this system may have popped onto the radar of many for the first time recently, friends and families who lost loved ones to this racist and prejudiced criminal justice system have been working for years to remove one huge tool of oppression from the state: cash bail. Their years of lobbying elected officials, loudly pounding the pavement, and holding photos of those they needlessly lost seems to be paying off.
On Election Day voters in two large, geographically opposite states, New York and California, will find themselves on the precipice of starting a new American revolution as voters decide whether to uphold or upend their state’s cash bail systems. However, despite being tantalizingly close, those on the front-lines of the battle know success is anything but assured.
The current US population is approximately 331 million, according to World O Meter, making it the third most populous nation behind China (1.4 billion) and India (1.3 billion). Yet, its total prison population exceeds 2.3 million, making it by far the largest number of incarcerated in the world.
Currently, 60 percent of those incarcerated are awaiting trial and have not been convicted of the crime they were arrested for. Many of these people are in jail simply because they cannot afford the cash bail set by their judge. Black, Brown, and impoverished white communities feel the brunt of this system more than others.
“The movement began building, driven by people in communities who are most in the line of fire of the incarceration system,” Human Rights Watch researcher John Raphling told The News Station. “Primarily Black communities, Brown communities, poor communities, communities that are over policed, and communities where people are being taken to jail and sent to prisons in high numbers.”
Lex Steppling is director of campaigns and policy for Dignity and Power Now (DPN) – a L.A. based grassroots organization. He also works with The Committee Against Pretrial Racism, because for him the fight is personal.
“I came from a family impacted by incarceration,” Steppling explained. “I had a parent incarcerated. I’ve had a sibling incarcerated – navigated those systems my whole life on the outside, and [I’ve seen] how the policies fail the community.”
For New York the media spotlight on a tragedy catalyzed the reform fight. In 2015, Kalief Browder, a young black man from the Bronx spent three years incarcerated at Rikers Island due to his inability to pay a $3,000 bail. Two of those years were spent in solitary confinement. Two years after his release, Browder hung himself at his parent’s home.
Those events led Jay Z to produce the documentary Time: The Kalief Browder Story. They also led New York City to settle a civil lawsuit with the Browder family for $3.3 million, and the increased public pressure on complacent state legislators to upend a cash bail system that’s failing thousands.
In recent months the fight for the White House has dominated cable news and the Twitterverse. Yet, advocates and survivors of this system have been focused on this issue, because – in their own unique ways – cash bail reform is on the ballot in both California and New York state on Tuesday.
In California, voters are weighing in on a ballot measure promising to end the cash bail system, while in New York, a bail reform measure enacted earlier this year is only expected to survive if Democrats can maintain, or even expand, their slight legislative majority in the legislature.
As two of the country’s most populous states they’re both national and international trend setters, which is why prison reform advocates are hoping Election Day starts a new day across American when it comes to how we treat low income individuals trapped in the US criminal justice system
Californians Get Direct Say Bail Reform
In California the fight for bail reform has taken the type of strange twist that could only be created by Hollywood’s most creative writers or by new money, tech billionaires willing to throw millions at the state legislature and governor. Thanks to some creative bill writing, bail reform advocates find themselves in the unusual position of lobbying their supporters to vote against Proposition 25 – a ballot measure that purports to end cash bail.
That’s because back in 2016, California State Sen. Bob Hertzberg’s anti-cash bail legislation Senate Bill 10 (SB 10) initially had the support of progressive groups and bail reform advocates. Human Rights Watch (HRW) researcher John Raphling has carefully tracked the bill’s development since its inception. Initially HRW and Raphling supported the measure, even as they saw flaws in it.
“It had its problems but it was supportable,” Raphling told The News Station. “It would have ended the use of money bail and it would have addressed pretrial incarceration by setting up a structure where anyone accused of a misdemeanor or anything but the most serious of felony offenses was going to get out.”
Regrettably, for Raphling and other bail reform advocates, the bill was overhauled as it made its way through the ornate Capitol in Sacramento. By the end of 2017, a California judicial commission released a report that also advocated against cash bail, but “what they proscribed as a change was really bad, ” Raphling says.
The revisions had several key components: The judges would be given discretion to recommend pretrial detention without setting bail in any amount (meaning pretrial detainees have no options for release), risk assessment tools (which we’ll get to more in-depth in a few graphs, but they’re basically electronic formulas) would be the primary arbiter of who was allowed pretrial release, and many individuals released before their trials would now be supervised by probation officers.
As a result of these recommendations, as well as lobbying by both the bail industry’s union and those who make risk assessment tools, these recommendations were adopted almost verbatim. In effect, the bill was totally rewritten.
That’s when everything got flipped upside down. Now these advocates are being forced, by their morals, principles, and intimate knowledge of the system, to oppose a bill they previously supported, and also one they’re passionate about seeing defeated on the November 3rd ballot measure.
As stated on the ballot, Proposition 25 is a measure where a “yes” vote upholds the contested legislation, SB 10, which would replace cash bail with risk assessments for detained suspects awaiting trials. A “no” vote is to repeal SB 10, thus keeping in place the use of cash bail for detained suspects awaiting trials.
While seemingly straightforward, what you can’t put in the 50 or so words you’re granted to explain a ballot measure is the fact that the new legislation while “eliminating cash bail” would simultaneously mandate the use of risk assessment tools. Those are considered by those with anything more than just a cursory understanding of bail reform to be a tool of the judicial system. They’re often considered worse than cash bail itself.
Risk assessment tools are generally computerized formulas that take data points about an individual and use them to create a profile. That’s then compared to a data set to predict whether the computer thinks a person is likely to appear in court for their trial date or if the system expects them to re-offend in the meantime.
Also, included in the new legislation is pretrial monitoring by the probation system, in effect putting those not even convicted of a crime on probation. Perhaps, most ironically, the new legislation also creates more leeway for judges to weigh in on pretrial incarceration. That’s the original problem to bail reformists.
Just as the prison system exists coast to coast so does the fight for incarceration reform. While the bail reform enacted in New York makes it seems as though their east coast compatriots are a couple steps ahead, recent rollbacks and a contentious battle for the state legislature make it clear that things in the east are just as precarious as they are on the west coast.
New York Voting for More than Legislators
In New York there’s no ballot measure, but the outcome of state congressional races will play a large role in deciding the fate of recently enacted and amended bail reform legislation. This January, the legislature and Gov. Andrew Cuomo (D) implemented a new law to eliminate cash bail for almost all misdemeanors and non-violent felonies. Instead, suspects were released of their own recognizance or with other conditions, such as pretrial monitoring, which were said to have been designed to ensure they made it to their court appearances.
For proponents, it represented progress overflowing with benefits up and down the system. Studies have shown that even short interactions with the US prison system can be psychologically traumatizing. For suspects unable to pay bail, longer pretrial jail stints can impact employment or result in loss of housing or child custody. Those incarcerated before they’re granted a trial are statistically more likely to plead guilty–regardless of guilt or innocence. It’s also just dumb financially, to proponents. Studies have also shown pretrial release is frequently more cost-effective than incarceration for jurisdictions.
In New York City proponents of bail reform want to see city and state jail populations reduced to the point where the infamous Rikers Island prison facility can be closed permanently. Research from the Center for Court Innovation shows the law contributed to a 40 percent decline in the sprawling city’s pretrial jail population, with slightly greater reductions in the rest of the state.
Law and Order?
The New York law that went into effect on the first of this year was only enacted for a few hours when it began facing attacks from Republican legislators.
Council Minority Whip Joe Borelli (R-Staten Island) tweeted a press release that said, “Happy New Year everyone! Especially happy for our most recent BANK ROBBER.” The councilman sought to make light of the fact that the suspect in a Pioneer Savings Bank robbery was released on his own recognizance.
Republican State Sen. James Tedisco and Democratic NYC Mayor Bill De Blasio also publicly criticized the bill. Three months later the state legislature amended it so that judges now have more power to impose cash bail. The Center for Court Innovation projects those changes will cause a completely avoidable 16 percent reversal in the city’s jail population. While certainly less significant than the 40 percent reduction in a state whose prison system has been battling coronavirus outbreaks all year the difference could be critical.
Risk Assessment Tools
In terms of special interests, likely the biggest spender in the Proposition 25 campaign is the billionaire John Arnold of Arnold Ventures. He’s personally donated at least $5 million to “End Predatory & Unfair Money Bail” – a committee formed to support Prop 25.
The tools have become popular nationwide as a way of supposedly eliminating a judge’s personal biases in pretrial incarceration outcomes. Arnold Ventures is responsible for producing the most widely used risk assessment tools in the country and according to Raphling, his “goal is to have his risk assessment tool in every jurisdiction throughout the United States.”
Ralphing and other opponents of risk assessment tools argue the factors used to create profiles often reflect the biases subtly intertwined with the fabric of our society. For example, African Americans are more likely than others to be arrested and less likely to be property owners, yet those two factors are considered in many risk assessment algorithms.
In July 2018, more than one hundred civil rights and community groups, including the ACLU and the NAACP, signed a statement opposing the use of pretrial risk assessment tools. They all agreed, they “threaten to further intensify unwarranted discrepancies in the justice system and to provide a misleading and undeserved imprimatur of impartiality for an institution that desperately needs fundamental change.”
The Bail Industry
In California, The American Bail Coalition has been among the most vocal opponents of SB 10 and Prop. 25. Because the legislation seeks to end the bail industry, it’s made unlikely and uneasy bedfellows out of longtime bail reform advocates such as Raphling and Steppling. While The American Bail Coalition has made clear their priority is preserving the bail industry, as they fight SB 10 they’ve deployed many of the same talking points used by the grassroots bail and incarceration reformists.
Mike Gattow is an attorney and former California state legislator. He’s been acting as a spokesperson for the American Bail Coalition in their Prop 25 campaign. He points to the heavy reliance on risk-assessment tools as one of the main reasons to oppose the bill.
“How do you craft an algorithm in such a way that it is not racist? How do you craft an algorithm in such a way that it is not prejudiced against the young? How do you craft an algorithm in such a way that it is not prejudiced against the poor?” Gattow asked.
He also sought to frame the continued use of bail as a fight for justice.
“We have to make sure that if you are the victim of a crime that you get justice,” Gattow told The News Station. “The only way that you can get justice is if the person who perpetrated it actually shows up in court.”
Studies of New Jersey and Washington, DC–two of the country’s pioneers of bail reform –have shown that after reforms were implemented defendant’s rates of appearance for trial are similar or better to rates of appearance than before.
Neither Raphling nor Steppling seemed convinced of the bail industry’s magnanimous intent. Both went to lengths to make it clear that while they’re temporarily on the same side of this issue, they don’t support or align themselves with the bail industry in any sense.
“None of us would’ve wanted to be on the same side of an issue as the bail industry because none of us like the bail industry,” Steppling said. “We’ve chosen to be very transparent, we won’t take any money from the bail industry. We won’t take any special interest money at all, and we actually won’t even take a phone call from the bail industry.”
Success & Setbacks
Andrea Nieves and Christopher Boyle are attorneys with the New York County Defender Services. As practicing public defenders, thus natural bail reform advocates, they’ve been at the center of New York’s fight.
Politicians seeking to avoid bad press, and not public safety, is the primary reason large portions of bail reform were rolled back in July, according to Nieves.
There had been a lot of bad press over the handful of people rearrested in its aftermath. None of those people murdered anybody. No case led to those who were released then committed acts of violence.
“Nonetheless, simply the fact that a few people got rearrested was enough for the legislature to make the decision,” Nieves told The News Station.
They also speculate that judges across New York have an implicit goal of preserving judicial powers, which they think also played a role.
“Most judges would want the discretion to decide what they want to do; they don’t want the legislature telling them that they can’t do something or that they have to do something,” attorney Boyle told The News Station.
However. They both agree that even with the rollback, their clients are in a better place than they were before.
“For our practice, the fact that 40 percent fewer of our clients are now incarcerated pretrial is huge, because that means we can get totally different kinds of dispositions,” Nieves said. “It’s well documented that people who are in jail get worse sentences than people who are out.”
Even as they look to each other as models, it’s clear that proponents of bail reform on both coasts find themselves in remarkably similar situations. Tenuous gains made in bail and prison reform in both California and New York can either be cemented in history and in the lives of tens of thousands or erased depending on the results of the 2020 election.
For the reformers, decades of momentum seem to be on their side. But the opposition is fierce.
“We know that no matter what happens with the vote, the community and the general population are coming out of this more educated now than they were before,” Steppling said. “That in and of itself is a victory.”