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As Activists Hack the Bail System, California’s Bail-Free Future Looks Bleak

Posted by Joseph Tully | Oct 17, 2018


Governor Jerry Brown's bill to end cash bail in California will go into effect on Oct. 20, 2019. But what will this really mean for all the people who are unjustly sitting in jail in our state today?

New York Times editorial compared California's new proposed system to “taking Advil for cancer,” basically, just alleviating the pain while not fighting deadly diseases of “mass incarceration and structural racism.”

So, what does it mean that bail will be abolished? Sadly, because the system is rotten from the inside, the new law will likely serve to perpetuate the injustices that have been so well cultivated, leading to a dramatic increase in pretrial detention.

The bill's pretrial release system also includes measures like mandatory reporting, drug tests, and even electronic surveillance. In other words, up until today, if you had no money for bail, you might plead guilty or stay in jail. That was certainly bad.

However, in the future, since you can't bail out and be free as long as you stay out of trouble, you may have to endure probation-like conditions and lose privacy, without ever having been found guilty or convicted.

This is not pessimism on my part or on that of The Bronx Freedom Fund's David Feige and The Bail Project's Robin Steinberg, the authors of the New York Times article, who agree.

New Jersey is a good example to watch, as bail was eliminated there last year. What followed? Well, unsurprisingly, 90 percent of the people who were scheduled for bail hearings were either jailed or released under the abusive probation-type conditions cited above. Nearly 40,000 people had to endure this, right after bail was abolished.

In my book, California: State of Collusion, I talk extensively about everything that is wrong with bail. At first glance, people might expect me to celebrate the elimination of bail in our state, but I am more cautious than that. When the non-bail system is in the hands of the same corrupt prosecutors and judges whose mouths water at the prospect of jailing arrestees, regardless of their innocence, one cannot expect any true reform.

As I wrote in my book, in a chapter entitled The Weaponization of Bail, “today, bail has been weaponized to punish the accused disproportionately based on their wealth. It is used clumsily by politically aspiring judges to make a statement against crime. Bail is wielded like a bludgeon by police to coerce arrestees into false witness and confessions.”

Bail has been a disaster. It has contributed to jailing poor African Americans and Hispanics, sometimes for no reason at all, or because a psycho cop got up on the wrong side of the bed one morning. But if the system's idea of a solution is to jail or confine more people because now there is no barrier to keeping anyone confined behind bars during the pretrial phase of a case, we may be looking at a bad approach to a complex problem; one that looks good on paper, but will, in reality, continue to destroy the lives of innocent people.

In this grim landscape, the Bail Project proposed a creative solution, which some have described as, “a hack.” Unfortunately, the hack will not work without a bail system, but it has shed light on the inequalities of the system.

Like me, Robin Steinberg, whose TED talk on bail is truly inspiring, learned about our unjust system while working as a public defender. “What I saw so shocked me that I thought, this can't be happening in our country, and we can't possibly think this passes for justice,” she told an NPR host.

“America is addicted to imprisonment,” Steinberg said in her TED talk, “From slavery through mass incarceration, it always has been… The United States incarcerates more people per capita than almost any nation on the planet.” I analyze these facts in depth in my book, and I doubt anyone needs convincing, so, let's move on to Steinberg's accomplishments in the community.

This passionate activist has learned one thing the majority of the public ignores; the price of freedom in America, “is called ‘bail.'” After watching people lose their homes, custody of their kids, and their livelihood because they just couldn't afford bail, Steinberg and her husband came up with the idea of creating a bail fund.

So, how much would bailing people out help? The numbers were eloquent. People who are jailed because they have no money for bail are “four times more likely to get a jail sentence… and that jail sentence will be three times longer.” Steinberg continues, “And, if you are black or Latino and cash bail has been set, you are two times more likely to remain stuck in that jail cell than if you were white.”

Indeed, Steinberg and her collaborators realized they could actually make a difference. Moreover, because bail money comes back to you when defendants show up for court, a bail fund could actually feed itself, so to speak.

When the Bronx Freedom Fund pays bail, over 95 percent of individuals come back for every court appearance, and only 2 percent of the fund's clients have received a sentence in over a decade. 50 percent of the cases were simply dismissed. If those people had been jailed, statistics show that nearly 90 percent would have pleaded guilty.

Last year, the Bronx Freedom Fund became the Bail Project, which plans to cover 40 cities across the U.S. But if every state starts eliminating the bail system, while not proposing a truly better alternative, not even the Bail Project will be able to help the victims of this statistically provable biased and unfair concoction we call our Justice System.

Activism is sometimes the last resort for those who still believe in Constitutional Rights in our nation. But, we need reform now, and such reform will not come until the public understands the evils we see and face every day as defense attorneys.

This is why we need people like Steinberg because she has joined the many voices that are raising awareness about these injustices in places where the general public can hear them. Bail is evil, but a no-bail system can be evil too. Unfortunately, as long as law enforcement and the ‘justice' system stay focused on maximizing convictions instead of finding the truth and upholding civil rights, there won't be true change, and there won't be true reform. Innocent people will continue to suffer as the owners of for-profit prisons, the natural result of our bursting public prisons, line their pockets with blood money.

About the Author

Joseph Tully

Founding Partner, Criminal Law Specialist Our founding attorney, Joseph Tully, is sought out for his expert legal advice throughout California. With over 20 years of experience as a criminal lawyer, in 1000+ felony and other cases, Tully served as felony trial counsel as a public defender before...