Sens. and prospective 2020 presidential candidates Bernie Sanders and Kamala Harris have each presented bail reform legislation. (Photo by Alex Wong/Getty Images)

Bernie Sanders and Kamala Harris Both Fall Short on Abolishing Money Bail

Each of their bills is weak, although Harris’ is more dangerously flawed.

BY Sarah Lazare

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“We are at a very dangerous time in the bail reform movement, because the forces that created the money bail system are aligning to determine what replaces it, and it's in their interest to maintain a system with high rates of pretrial detention where humans are put in cages.”

A growing movement across the country is exposing the injustices of our money bail and bond systems, which lock up as many as 400,000 people on any given day simply because they are too poor to purchase their freedom. This large-scale organizing, which includes community bond funds that directly pay people’s bail in more than 40 jurisdictions, has thrust the demand for the abolition of money bail into the mainstream. Now, a multi-million dollar organization funded by the likes of business mogul Richard Branson is financing mass bailouts nationwide, and prominent Democrats are talking about the need to end money bail. This high profile brings incredible potential—but also a host of dangers.

Bail reforms are only as good as the decarceration strategies underpinning them. If bail is replaced with a system that gives the state the power to hold more people pretrial, or expands electronic monitoring and surveillance, the reforms could deprive even more people of their freedom. Given this risk, now is an important time to be vigilant against disingenuous—or well-meaning, but misguided—reforms, including those presented by 2020 presidential hopefuls Bernie Sanders and Kamala Harris. These federal bills are important even if they have no chance of passing, because they send a message to the states and jurisdictions that are mulling bail reform—and they influence progressive demands at a time of left resurgence.

In July, Sen. Bernie Sanders introduced the No Money Bail Act, citing the hardships faced by people forced to sit inside local jails, sometimes for years, while constitutionally presumed innocent. The democratic socialist from Vermont forcefully used the movement’s language of ending money bail altogether, declaring in a press statement, “In the year 2018, in the United States, we should not continue having a ‘debtor prison’ system. Our destructive and unjust cash bail process is part of our broken criminal justice system–and must be ended.” In 2017, Sen. Kamala Harris, a former public prosecutor, partnered with Sen. Rand Paul on the Pretrial Integrity and Safety Act, which encourages states to “reform or replace” the money bail system. While Harris’ rhetoric is more subdued, both bills are remarkably similar and—if you look at the nitty gritty—deeply flawed.

The bill put forward by Harris is the worse of the two, because it calls for increased state reliance on discriminatory algorithms and “predictive” tools to determine whether an individual must stay in jail. But both pieces of legislation fail to present a forceful plan to reduce pretrial detention, rest on funneling more money into the very criminal punishment systems that are unjustly jailing people, and omit some of the best decarceration strategies the bail reform movement has to offer.

More money for jailers

Neither bill directly bans monetary bail at the state or local level. Instead they rest on an incentive program of funneling federal funds to state-level criminal punishment systems to reward reform—a tactic that, unfortunately, invests in the very carceral institutions responsible for perpetrating large-scale harm. “The Assistant Attorney General may make grants to State and tribal court systems and eligible entities for the replacement of the use of payment of money bail as a condition of pretrial release with respect to criminal cases,” reads the key provision of the Harris/Paul legislation. This sentence appears nearly verbatim in Sanders’ bill.

Sanders’ version goes on to include two conditions that make it somewhat stronger. One is that, to be eligible for funds, states must show “annual statistically significant decreases in the pretrial detention populations of States and units of local government.” In contrast, Harris does not tie funds incentives to reductions in incarceration, making her bill weaker.

Second, Sanders’ bill follows Rep. Ted Lieu (D-Calif.)’s No Money Bail Act of 2017 in calling for the Attorney General to withhold federal funds from states that don’t pursue reform within three years of enactment. Such measures are more beneficial because they do not involve investments in the very institutions doing harm.

However, both Harris' and Sanders' bills include incentives that reward reforms with investments in the criminal legal system, running counter to the demands of the Black Lives Matter and abolitionist movements that have so deeply informed the movement to end money bail. Their aim is to reduce the infrastructure of carceral institutions, with the goal of reducing incarceration overall. This principle is codified in the divest/invest policy platform of the Movement for Black Lives, issued in 2016:

We demand investments in the education, health and safety of Black people, instead of investments in the criminalizing, caging, and harming of Black people. We want investments in Black communities, determined by Black communities, and divestment from exploitative forces including prisons, fossil fuels, police, surveillance and exploitative corporations. 

Along these lines, communities across the country are fighting to divest funds from policing and imprisonment—and invest them in schools, health clinics and other vital goods. They are up against a neoliberal approach to reforms, which holds that if jailers or police abuse people, the problem can be solved by throwing more money at the institutions to make them better. This logic has, for decades, led to bloated budgets for the carceral institutions inflicting large-scale violence.

Joshua Glenn, a member of the Philadelphia-based #No215Jail coalition, was incarcerated for 18 months when he was just 16 years old because he was too poor to afford bond. “We have a system that systematically underfunds and over-polices black and brown communities,” he tells In These Times. “Those communities need to be made whole through funding and resources.”

If the federal lawmakers are intent on using payments as incentives, they could reward reforms with funds for healthcare, school systems and other public services—rather than jail systems.

Thea Sebastian, policy council for nonprofit Civil Rights Corps, says her group has considered advocating such incentive structures, but believes that federal lawmakers can simply exercise the law to get states to stop unjust money bail practices. Bail systems, she argues, are unconstitutional because they violate equal protection and due process clauses. Civil Rights Corps has used this argument in ongoing lawsuits against jail systems around the country, and won a victory in April 2017 when a Houston judge ruled that the Harris County, Texas, cash bail system was unconstitutional, resulting in the release of 11,500 people. (The case is now on appeal.)

Sebastian believes that the same logic could be used by federal lawmakers. “Section 5 of the 14th Amendment says the federal government can enforce the rights in the 14th Amendment through appropriate legislation,” she argues. “Congress could pass legislation that tells states to stop violating the constitution.”

Missed opportunities

Unlike Harris, who doesn’t touch the federal criminal punishment system, Sanders calls to prohibit “the use of payment of money as a condition of pretrial release in Federal criminal cases.” On its face, this measure sounds like a bold move to abolish money bail, but in reality it would have a minimal impact. Sebastian tells In These Times: “Money bail is not the primary issue in the federal system.” Sebastian argues that a more effective bill to curb pretrial detention at the federal level “would increase the category of people who are immediately released and increase the presumptions against onerous conditions, while—crucially—reducing the [total number] of people who may be ordered detained.”

Sakira Cook, senior counsel at The Leadership Conference on Civil and Human Rights, agrees, saying that Sanders’ legislation “misses an opportunity” for full reform.

Another missed opportunity is the arena of immigrant detention, mentioned by neither Sanders nor Harris, where federal lawmakers could immediately free thousands of people. Although ICE does not publicly release nationwide bond data, multiple investigations have found that bonds in immigration cases are routinely set far higher than $1,500 minimum, and under Trump, they’re increasingly above $10,000. Bonds are imposed despite the fact that immigration “violations” are civil—not criminal—infractions. The Immigrant Bail Fund reports that one in five people locked in immigrant detention are there because they cannot afford their bond. If federal lawmakers moved to abolish bond in immigration courts, and ensure it was not replaced with something more punitive, this reform would have a tremendous impact.

Racist “predictive” tools

The Harris/Paul bill contains a troubling component not found in Sanders’: increased reliance on predictive tools and algorithms to supposedly determine whether an incarcerated person will fail to appear for court dates or be rearrested if released before trial. The legislation calls for “replacing money bail systems with individualized, pretrial assessments” that “measure the risk of flight and risk of anticipated criminal conduct posed by a defendant while on pretrial release.”

The outcomes of such assessments can be the difference between fighting one’s case from a jail cell or freedom. Yet they are widely assailed as crude and non-transparent instruments, often based on dehumanizing algorithms that are more likely than not to compound the racial injustices of prisons and policing. On July 30 of this year, 119 prominent social justice and civil rights organizations, including many of those leading the movement to reform or abolish cash bail systems, released a statement condemning such tools:

Our system of justice is profoundly flawed: It is systematically biased against and disproportionately impacts communities of color and allows for frequent violations of the right to due process. As such, the data driving many predictive algorithms—such as prior failures to appear and arrest-rates—reflects those flaws and biases and, as a result, are profoundly limited. Decades of research have shown that such data primarily document the behavior and decisions of police officers and prosecutors, rather than the individuals or groups that the data are claiming to describe.

Glenn, too, argues that such assessment tools are inherently racist. “There is no way that from a computer, you can figure out the risks of releasing a person into the community,” he says. “These risk assessments are sort of like a factory machine that funnels people. It doesn't address the root cause of an issue. They are dehumanizing our communities.”

Glenn’s concerns are backed up by empirical evidence. A May 2016 ProPublica investigation found that a pretrial risk assessment software developed by the company Northpointe results in bias against Black defendants. Looking at the records of more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014, journalists Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner determined, “The formula was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.”

Not every organization that claims to support bail reform is in agreement: The Pretrial Justice Institute, whose second biggest funder is the U.S. government’s Bureau of Justice Assistance, supports pretrial risk assessment tools. The organization’s CEO, Cherise Fanno Burdeen, recently told Vox, “It’s inappropriate not to use the data that’s available to us to improve our decision-making.”

California’s recently passed bail reform legislation, SB10, lost the support of many bail reformers due its replacement of money bail with a risk assessment algorithm to determine who should be detained before trial. Under the bill, such tools will be used to give people risk scores of high, medium or low. Activists are worried these scores will be used to justify locking more people in jail. The legislation also expands the power of judges to order pretrial detention, even if it means overriding these assessments. The net effect may be to detain significantly more people while they await trial—a wait that can take years.

As a result of these measures, bail reform organizations largely pulled their endorsements—and many even lobbied against the bill. Essie Justice Group, an organization of women with incarcerated loved ones, wrote in mid-August, “Unfortunately, SB 10 has deviated so substantially from its introductory language that it now turns its back on California communities—particularly Black, Brown and low-income—who have been most harmed by the bail industry and system.”

Many of those who came out against the bill had initially mobilized to advance it. “The more time passes, the angrier people are going to get when they think about what happened,” Raj Jayadev, the coordinator of a Silicon Valley De-Bug, told Politico. “They co-opted the bail reform movement to test out a new preventive detention system.”

Harris is entering contested terrain, and weighing heavily on the wrong side.

Time for bold and deep changes

The case of California underscores a risk of calling for an alternative to cash bail: The system could be replaced with something equally—or more—sinister. As Civil Rights Corps founder and executive director Alec Karakatsanis puts it, “We are at a very dangerous time in the bail reform movement, because the forces that created the money bail system are aligning to determine what replaces it, and it's in their interest to maintain a system with high rates of pretrial detention where humans are put in cages.”

According to James Kilgore, director of the Challenging E-Carceration project, “Ultimately, unless we change underlying structural dynamics, reform may grow new modes of incarceration, like electronic monitors where the ‘user’ pays to be technologically caged. This has very little to do with freedom or alternatives.”

“Ending cash bail is but one step along the road to decarceration,” adds Kilgore, who was incarcerated for more than six years in the California prison system. “Those pushing for an end to cash bail must also think about what happens to people when they are released.”

But this moment is also full of possibility, and in order to seize on the potential, we must demand meaningful changes that dismantle the machinery of incarceration. The bills of both 2020 hopefuls may have no chance of passing anytime soon—and could be designed to signal the values of Sanders and Harris as they gear up for the presidential primary. If this is the case, why not develop the ideal legislation, and take the opportunity to showcase what a true decarceration strategy could look like for the states and jurisdictions mulling bail reform or abolition, not just a preemptively limp proposal?

As someone who represents the left flank of the Democratic party, Sanders has an opportunity to seize the moral high ground with policies that meaningfully chip away at carceral institutions and improve lives on a massive scale. He’s pushed for bold and deep changes on other fronts—including his call for universal, single-payer healthcare, which is not swayed by the false solutions of the private industry or astroturf organizations. He can take a firm stand on incarceration as well, and he must. The hundreds of thousands of people trapped in pretrial detention don’t need more nice-sounding rhetoric, campaign stumping, or piecemeal, racist techno solutions: They deserve material relief, and a serious plan to get there.

Full disclosure: Sarah Lazare volunteers for the Chicago Community Bond Fund, which works to end money bail and pretrial detention, but is not writing on behalf of the organization.

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Sarah Lazare is web editor at In These Times. She comes from a background in independent journalism for publications including The Intercept, The Nation, and Tom Dispatch. She tweets at @sarahlazare.

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