The Cost of Pretrial Liberty: Bail and Mass Incarceration in America

Zining: Welcome to Low of the Land. I'm Zining, a junior at Barnard studying political science and human rights. Today we are going to talk about the bail system in the United States.

In 2016, 16-year-old Kalief Browder was arrested for allegedly stealing a backpack. The judge set his bail at $3,000 and his family couldn't afford it, so Kalief was held on Rikers Island, New York's largest jail, for three years without being convicted of anything.

Kalief's story is not a particular case. This situation happens across the United States. In New York, about 33,000 people spent time in jail in 2017 because they were too poor to afford bail. Nationwide, more than 400,000 people are currently in pretrial detention. They sit in jail cells, stuck behind bars, waiting for their cases to be heard. They can lose their jobs, their housing, and their kids. Many will plead guilty just to get out, even if they are innocent.

And who is most affected by the current bail system? It is the low-income and Black community that bear this disproportionate weight. In this episode, we're going to explore the development of bail law, where it comes from, how it's being challenged, and what real reform actually looks like.

We'll talk about Supreme Court cases like Stack v. Boyle and United States v. Salerno, and the waves of reform that have swept across the country, and the communities and advocates who have been fighting to change the system from the ground up.

Our guest today is Professor Jocelyn Simonson at Brooklyn Law School. She's a scholar of criminal law and process. She focuses on bottom-up democratic participation in the legal system.

In her book, Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration, she analyzes how communities across the country are challenging mass incarceration through bail funds, court watching, and participatory defense. And, Erin George, National Director of Policy at The Bail Project, a national organization working to provide pretrial services for those in need while striving to eliminate cash bail through public advocacy. Let's get into it.

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Zining: To give our listeners some grounding, I want to start with some legal foundations of bail, and then move into, like, real-world impact and the future directions of bail reform. So our first question would be, how does the law related to bail develop, and what are some fundamental cases we should know to understand how bail law developed and works in the U.S. today?

Professor Simonson: Hi, thanks for having me. I'm looking forward to this conversation. It's about how bail law develops, no matter what their income status is.

So we could think about bail law developing in a constitutional sense, and I'm happy to talk about that. We can also think about practices changing, because it turns out that the Constitution places some limits on bail, but for the large part says to states and prosecutors and judges and court systems that they can use money bail if they want to, and they can hold people in pretrial detention if they're using certain processes if they want to. But if we want to think constitutionally, the excessive bail clause is often where people look.

There's a famous case called Stack v. Boyle, you know, affirmed that excessive bail applies to the states, and that you can't hold somebody arbitrarily on a high amount of money while their case is pending. Instead, you have to give specific reasons to say, if I'm holding someone in jail pretrial, this amount is on a determination that it's necessary to make sure the person comes back to court, something like that.

So that's kind of an initial basic, like, you know, foundational case saying that excessive bail is a real constitutional idea. At the same time, and we can go through a series of different cases, constitutional limits on bail can be slippery, and so a lot of the current work and fights around bail reform are actually on the policy level, in the sense that it's about state legislatures and Congress deciding what kind of bail systems and pretrial systems they want to have, deciding it makes more sense to let people be free while their cases are pending and they're still presumed innocent. And so then it becomes a political question of what laws are we going to pass? What are judges going to do? What are prosecutors going to do? And even, what are police going to do in deciding who to arrest?

Zining: So how does the court define this concept of excessive bail? And as you said, like, how are courts and judges interpreting the definition of the prohibition of excessive bail?

Maybe we want to try to introduce our audience to a kind of major turning point when it comes to the Federal Bail Act in the United States v. Salerno. So in the 1980s, the Congress passed the Federal Bail Act, and it requires judges to consider public safety as a factor in shaping the bail. And I'm curious on how does this decision influence our current practices of the bail? And is the court, when judging on a case where an individual should receive their pretrial liberty, are they balancing the idea of excessive bail more or the government's interest in public safety more?

Professor Simonson: Okay. Yeah, I'm going to back up a little bit. I don't think we ever stopped to talk even about what bail is or what pretrial detention is, and I don't want to assume that all your listeners know that. If we start today, more than 400,000 people at any one time are sitting in jail in cages while their cases are still pending, and they're presumed innocent. And most of them are there because an amount of bail has been set beyond what they can afford.

And bail can be set legally, for a couple of different reasons, and it’s going to depend on the statute of the state that you're in, it can sometimes be set to ensure that you come back to court, or it can be set to try to ensure that you don't get rearrested while a case is pending. It's not supposed to be set in amount to make sure that you're in jail while your case is going on. But in practice, that is often how it operates.

So then if we take a step back, over the years, there have been a number of waves of trying to change that. And I know you described it as policy, but it is law. And it's necessary to understand in order to sort of see then how the Supreme Court intervenes or courts intervene at different moments.

So the first wave of bail reform was back in the 1960s, when the Kennedy administration and a lot of progressive reformers were saying, wait a minute, that doesn't seem fair that people are incarcerated pretrial just because of their poverty. And they tried to change systems and factors and release more people, or at least have a more reasoned set of criteria to look at to try to figure out why are we really setting bail.

So that's the first wave of bail reform. But then as we head into the late 1970s and 1980s, there starts to be a second wave, which is more tough on crime and is trying to put more people in cages while they're still presumed innocent. And one of the pieces of legislation that did this was a federal law that said, not that it wasn't about bail, but it was about pretrial detention, which is about the ability of the government to detain people, not by setting an amount of money that they can't afford, but just by making a declaration: they're going to be staying in jail while this case is pending.

And in that case of the federal bail statute, because of public safety. And so now we arrive at United States v. Salerno, in which the Supreme Court is asked to review this new federal reform that allowed the federal government to lock people up while they were still presumed innocent, again, not using bail, but using a pretrial detention statute that said money or no money, we're determining that public safety requires that even though this person hasn't been convicted yet, they be held in jail.

And the challenge came on multiple levels. One was under the excessive bail clause saying this is as excessive as you can get, it's infinite bail to hold somebody. And then the second reasoning behind the challenge in Salerno was under due process.

And the due process clause can sometimes be about procedure, but here it's what you call substantive due process, that the concept in the Fifth and Fourteenth Amendments of due process is a broad, substantive one that says, among other things, that in a criminal case, you're presumed innocent until you're found guilty. There's a constitutional presumption of innocence. And so if there's a constitutional presumption of innocence, then isn't that violated when someone is incarcerated and punished before they've been convicted?

And so in Salerno, the Supreme Court gets around that argument and finds that pretrial detention is not unconstitutional by saying it's not punishment. It's not punishment at all. Of course, to somebody who's inside of a cage, it feels like punishment, but the Supreme Court says that's not punishment. Instead, it is a regulation. It's a regulation that we're engaging in for public safety while a case is pending. And because it's regulatory and not punishment, they say it deserves a high scrutiny, what we call heightened scrutiny.

But then we have a balancing test where we say, what's the state interest in putting somebody in a cage while they're still presumed innocent? And what's that person's interest in liberty? Not in the presumption of innocence, which they say doesn't apply, but what's their interest in liberty?

And so they set up a balancing test and they say in that particular case, it's not violated and the statute is fine. They don't say pretrial detention is always okay. They say that it requires a balancing of the state interests in public safety or the community's interests on one side against the individual's interest in liberty.

And I find this balancing test really interesting because there's a lot of assumptions behind it that don't necessarily hold up, including that the interest of the public or the community is always on the side of incarceration and that that's what will keep them safe. But that is the assumption behind it and how they end up where they do in Salerno.

Zining: Thanks for your thoughtful response. And I think we've hit our half point of the interview, so before we shift our focus on the real world impact of bail, is there anything you want to add on to the history and the development of bail law before we move on?

Professor Simonson: Sure. Well, if we're thinking about constitutional challenges, I would just say, I would just mention that we haven't named them all yet. There's a lot of parts of the Constitution that implicate this broad scheme where hundreds of thousands of people are sitting in cages while they're still presumed innocent.

One of them is the Equal Protection Clause, which cases are brought under to say, wait a minute, it's not fair that if there's two people, one of whom has $100,000 and one of whom doesn't, and their cases are the same, one of them could afford bail and then they'll be free, when studies show that if you're out of jail pretrial, you're much more likely to win your case because you can work with your lawyer. You're much less likely to get a sentence of incarceration. Your sentence is going to be shorter. And if we think about it even more broadly, you're then allowed to return to your family, keep your job, all kinds of things that actually might promote community stability and community safety.

The Equal Protection Clause has been brought with some success in a number of places, including Texas and California. And so there are other kinds of challenges that are coming to bail. And those cases haven't made their way to the Supreme Court. But when it comes to challenging bail systems, there's a lot of constitutional ideas on the table: procedural due process, substantive due process, equal protection along racial lines, equal protection along class lines, and of course, excessive bail and the Eighth Amendment prohibition on cruel and unusual punishment. So it's kind of a broad scheme of things that someone who's interested in bail, I love learning and teaching about bail law because it does implicate so many constitutional ideas.

Zining: And since we're talking about, like, the consequences of, like, being detained for individuals, I'm curious, like under the current bail system, who is being mostly impacted by the bail law?

Professor Simonson: Right. So there's not one bail law. Instead, you know, there’s 50 different states with 50 different statutes that say when you can and can't set bail or incarcerate somebody pretrial. And then there’s, you know, thousands of different counties and prosecutors and different practices. So it's hard sometimes to study the impacts of bail, but it's undeniable that it impacts people who are low income and it impacts minorities, especially Black people and especially Black men. Race and class are hard to disentangle from each other.

So, the impact of saying that we're going to have a system where we use money to try to keep the community safe, when you step back, it feels kind of absurd and it has the kind of impacts that you might expect along lines of race and class. It also, if we're thinking about who it impacts, we have to remember that when someone is held in jail pretrial, it's a hardship for them, right, to be inside of a cage. But, that person has a family and a community and a neighborhood and a job, and so the impacts go well beyond what you can measure by just looking at that particular person.

Zining: Yes. And since you already mentioned, like, how the bail system has, like, an impact on community, I want to introduce that currently, like, we have a lot of bail reform that includes efforts to eliminate monetary bail. That can also be, like, a lot of, like, community efforts, as you mentioned, like, in your book, Radical Acts of Justice, there are strategies like court watching, participatory defense, budget proposals, etc. But even with, like, all these movements and all this community support system, we still see a lot of people being upheld in pretrial process. And could you explain why this kind of community support alone is not enough and why there is, like, this need for a formal legal reform for the bail system?

Professor Simonson: Sure. Yeah, there's a lot in that question. To step back for a minute, you know, I talked about the first two waves of bail reform. You know, there was a third wave, which has been, you know, starting about a decade ago of a resurgence in realizing, around the same time that we're realizing in general that mass incarceration is a problem, that pretrial detention is an especially pernicious part of prosecution, mass incarceration and mass criminalization in the United States. And that form of bail reform, yes, it's true that experts and lawyers and think tanks and government actors have focused on bail reform. But the impetus for that has come from communities. It's come from people whose neighborhoods and communities are impacted by pretrial detention who come together to try to push for reform.

One of the classic ways of doing that is actually by trying to free people by forming community bail funds. And often community bail funds, by freeing people over time, can build power and push for reform. So a great example of this would be in the state of Illinois, which a few years ago actually abolished money bond. It is gone. They don't have money bail in the whole state of Illinois anymore. And the reason they don't is multifaceted. It involves a statewide coalition of people pushing for that change. But at the heart of that coalition is a group called the Chicago Community Bond Fund, which was formed in 2015 during the rise of Black Lives Matter and worked to free people from jail in Chicago while telling stories about the impact of pretrial detention, and then working alongside a statewide coalition to try to eliminate money bond.

And there still is no money bond in Illinois. Since they've eliminated money bond, there has not been some scary rise in crime. In fact, it's been the opposite. They're demonstrating really cleanly and really clearly that we don't need to incarcerate people using money and saying that here's an amount of money that you can't afford, and therefore that's why I'm going to hold you in jail. No, we don't need to do that. And in fact, the more people you release in the aggregate, communities are going to be safer.

That's just one example, though. Every state is different. In New York, where I live, we've had a bit of a different story. There was bail reform passed. Then it was rolled back a few different times. Studies are showing pretty clearly that crime, as measured by the government, has not gone up with bail reform, but people are still claiming it has. There's active debates over it.

And so I think the end of your question was why isn't community support for bail reform enough, if I'm understanding it. And I think that is a parallel question to asking why we still have mass incarceration when it doesn't keep us safer, why we still use jails and prisons at all when there's just no evidence that it keeps us safer compared to the amount of harm that it does to people. And there's no one way to answer that question, but it does have to do in some ways just with our culture and our world and how we are taught. And again, so it's not anyone's fault when they believe this. We're taught that when something bad happens, putting someone in a cage, even before having a trial to figure out if they're guilty, is going to keep us all safer.

And there are actually a lot of other ways to respond to harm, a lot of other ways to prevent harm. There are abolitionist groups all around the country living out ways of making that happen. And to some people that sounds silly, outrageous, harmful, but often that response comes from people who actually have not experienced some of those other ways of responding to harm.

And so I think the more that we can stretch our imaginations, I don't think there's any right or wrong way to think about it, but, like, when I teach my law students, what I tell them is you can believe in pretrial detention and prisons. You can think that that is what keeps people safe, but don't believe it just because, like, defend it, explain it in the context of a world where you have to recognize that it's not the only possible way to respond to harm. And so similarly with bail, if we narrow it down just to now think about bail and pretrial detention, to then say, well, what are the other things that we can do when someone has a criminal case? Like, do we really need to put them in a cage, which, by the way, costs a lot of money for cities and states, or are there supports that we can give to people to make sure that they have the resources they need so that they don't have interactions with law enforcement or get arrested in the future? What kind of support can we give to people who've been harmed, to victims? Like, what if we turned our whole system to supporting people who've been harmed? Resources, energy, and restorative practices would flow in a different direction.

I also think that there's a lot of misinformation in the media about bail reform. I certainly see that in New York. Again, if you want to use, like, numbers like re-arrests and crime rates to figure out the impact of bail reform, it's really clear that bail reform is not leading to increases in crime as measured by traditional sources, but that's not necessarily what you would know if you read the headlines of some of our newspapers. So it also has to do with, I think, media literacy and just learning how we talk about these things.

Zining: So you mentioned, like, community, and then, like, how we should reform our media, our public perception of our criminal justice system. Is there anything you kind of want to add onto that?

Professor Simonson: Sure. Yeah, I think that one of the limits in thinking about what should we have instead of bail is if we think about it only in terms of, like, what should we do with this particular criminal case, instead of broadening it out to say, how should we make sure that people in this community are safe and feel safe? Because it turns out when you ask people what makes you feel safe, most people's first answers aren't having more people in jail. Most people's first answers are like, my school makes me feel safe, or having a lock that works on my door makes me feel safe, or having a well-lit park makes me feel safe.

We spend so many state resources on putting people in cages. And if we started to imagine other ways of promoting safety using those resources, that could be really exciting. A lot of people are doing that. And then it's true that people harm each other. And so if we can get more creative in thinking about responding to harm, looking at people who have been harmed and asking what supports they need, and then looking at people who have harmed others, figuring out how that happened, and figuring out how to prevent that in the future. Because the thing that doesn't make people not harm people in the future is putting them in prison. It doesn't reform people. And so if there are other ways to respond to what's happening, I tend to have a view that criminal law and criminal prosecution overall does not help keep us safer, and that there are ways to do it that are less punitive. But whether you think that or not, there can still be alternatives within our criminal system to move away from cages and prisons and towards forms of support that lead to less harm in the future.

Zining: What is the last thing you want the audience to know and think about regarding to the bail or, like, criminal justice system?

Professor Simonson: Yeah, just that it doesn't have to be this way. Prisons are not inevitable. Bail is not inevitable. And so the more that we are in community with each other, working on keeping each other safe, and trying to, you know, communal love and support for people who have been harmed, the more I think we're going to be able to collectively imagine a better world and a safer world and a more just world.

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Zining: So to begin, I'd love to ground our listeners with a quick overview of the Bail Project and the work you do. So Erin, could you briefly describe the work of the Bail Project?

Erin: Yeah, absolutely. So the Bail Project is a national nonprofit organization, and we're working to eliminate reliance on cash bail and improve pretrial systems across the country. So we do that in two ways. We have a two-pronged approach. So we do direct services. We have sites across the country where we provide free bail assistance and supportive services like court notifications, free transportation, and connection to partner organizations that provide supportive services to thousands of low-income people each year. That's the first prong. And then we also work to advance policy changes at the local, state, and national levels. So, passing laws and reforms to end cash bail, reduce reliance on cash bail, and improve pretrial systems. As far as our direct services go, to date we have provided direct service support and cash bail assistance to nearly 35,000 people. And those individuals have returned to nearly 93% of their court dates. So that really proves that cash bail is not necessary for people to return to their court dates.

Zining: Thanks for this overview. And now let's shift to talk about how bail and pretrial detention works in people's life because the bail process can feel kind of abstract and very legal. I also know from your note that pretrial procedure kind of varies a lot from state to state, but I'm hoping that we can kind of go through how the general pattern looks like and then kind of get into how this process works specifically in New York. So the first question would be, how does the pretrial or the bail process look like for a typical Bail Project client?

Erin: Yeah. So generally when someone's arrested and charged with a crime, they're going to go before a judge for a hearing where, depending on the seriousness of the charge and the judge's assessment of that person's level of risk of failing to appear in court or return to court, or that person's level of risk to public safety, the judge is going to either release that person on recognizance, which basically means that person’s promised to appear in court, promised to come back, release that person with conditions. So, they can set conditions that might mean checking in, so, supervision, that might mean agreeing to maintain a job. That also might mean financial conditions. So, that commonly is cash bail. And then in some cases they may remand that person to jail.

Now in New York, that's different. The Bail Project doesn't operate direct services in New York, and I can explain why in a little bit, but in New York, the process is a little different and that’s because In New York, the law has never allowed for assessments of risk to public safety. And that is actually in line with what the initial purpose of bail has always been. The initial purpose of bail has always been simply to ensure that someone returns to court. Public safety assessments were actually never a part of the equation in bail law and assessments of pretrial in any state until the Federal Bail Reform Act of 1984. The passage of that law is when they started to include public safety assessments and then states started to follow suit.

So in New York, when a person is charged with a crime that results in an arrest, they also, same as in other states, will go before a judge at arraignment. And at that hearing, it's at that time that depending on the charge, they will be released with conditions if it's a misdemeanor. Well, they'll be released if it's a misdemeanor, maybe released with conditions. Or if it's a non-violent charge, if it's one of the qualifying charges, they may have bail set or be remanded. But that assessment is only about return to court. It's not an assessment of dangerousness.

Zining: What are some common challenges, common barriers that people trying to secure a bail or pretrial release faces?

Erin: Yeah, so what I was mentioning before, again, the Bail Project doesn't operate in New York, and that's for a couple of reasons, right? So first is in 2013, New York State passed a law that restricted charitable bail activity. This is before the 2019 bail law reform, so it basically restricted charitable bail payments to misdemeanor charges only and at a maximum of $2,000. So then when the 2019 reforms passed, which eliminated cash bail for misdemeanor charges, charitable bail payments for most charges, cash bail can't be set for misdemeanors, and so a lot of charitable bail organizations stopped operating. There are still some charges and some circumstances where cash bail can be set for misdemeanors, but they are few, and they’re rare.

Generally, in other states, the challenges and the barriers that our clients face and that people face in general in getting and securing pretrial release on affordable cash bail, despite the fact that cash bail is supposed to be set in an amount that is affordable, that people are supposed to be able to pay, it is very commonly not set at an affordable amount. Cash bail is supposed to be a mechanism of release, right. Even though we are so used to the idea that cash bail is something that keeps people in jail, it is supposed to be a mechanism of release. It's supposed to be money that you put down in order to be able to go home, be able to fight your case from home, and when you comply with everything pretrial, you get that money back. But cash bail is very commonly set at amounts that are not affordable and people are not able to pay. And that is the most common challenge for someone securing their release.

Zining: And then besides these financial barriers, what are some other, like, common reasons the court denies bail?

Erin: So in New York, judges can only deny bail when someone is accused of a serious felony charge or they're accused of a new felony while they're on probation or parole or with a record and they have prior felony convictions. And then a judge finds them to be a high risk of flight. So they have to, on the records, find that they're a high risk of flight, and then they can deny that person bail and remand them to jail. In other states, a judge can deny bail for that same reason, high risk of flight. But they can also deny bail and remand someone to jail based on a finding that they pose a public safety risk. And in a lot of other states, they can also do that for lower charges. But again, most often we see unaffordable bail being set, and that's what lands someone in jail. Remand is less common.

Zining: Let's shift our focus to the New York bail reform, since you've already mentioned it. There is the 2013 charitable law, then the 2019 reform. Could you give us an introduction of these reforms and how this reforms emerged in New York?

Erin: Yeah, so the bail reforms in New York, actually the campaign that led to the reforms in New York grew out of the campaign to close Rikers. So, you know, in order to close a jail, you have to reduce the jail population sufficiently that closure becomes possible. And so, as that campaign, you can reduce jail populations through a lot of local policy change, but ultimately you have to get to bail reform, especially when you're talking about a very large jail.

So the coalition and the organizations that were working on the campaign to close Rikers knew from the start, we knew from the start, that we needed to reform bail law and other pretrial laws statewide if we were going to get to a place where closure of Rikers Island was possible. But we also knew that, doing that required passage of a statewide law, we also knew that there were campaigns to close jails and reduce jail populations across the state. And so statewide organizing began because you don't want to pass a state law without talking to people statewide and making sure you really understand what the facts are on the ground in cities across the state. Too often you'll see campaigns that start out of a major metropolitan city or major metropolitan area and folks aren't talking to folks in rural, you know, rural areas or suburban areas or out-of-state areas. And you can pass laws that have unintentional consequences. And so statewide organizing started to take place. And from that the campaign called the Free New York campaign emerged. And what we realized is that we needed to overhaul more than just the bail law.

And so Free New York was the statewide campaign that actually overhauled bail, discovery, and speedy trial laws in New York. And again, that was because it became clear that jails statewide were massively overcrowded and that pretrial systems across the state were dysfunctional. And so in addition to the bail law, which we can talk more about, obviously the discovery law, which quickly is the process, discovery is the process, where prosecutors share case information with defense attorneys and defendants so that people know what the evidence is in the case against them before they plead guilty or go to trial. Prior to the reform, which also passed in 2019, New York had one of the worst laws in the country. So that was leading to wrongful convictions, to people pleading guilty just to get out of jail, all while they had no access to the information, the evidence in the case against them. And reform led to open, early, and complete discovery. So that creates a much fairer and a much safer system.

And then the reforms also fixed a loophole in New York law, so we now have a better protection for the right to a speedy trial. So it helps to ensure that people don't spend months and years in jail while they're awaiting their day in court.

Zining: Since you already talked about how the changes the New York's bail reform is bringing to the system, what is the current status of the reform? Is it already finished or is it still, like, an ongoing process?

Erin: Yeah. So there were, there have been a lot of iterations, I guess. So the 2019 reforms, and I'd say even with the three rounds of rollbacks, did make significant changes to the system. So they did a handful, a few buckets of things. They eliminated cash bail as an option at all and required release for most misdemeanors and most nonviolent felony offenses.

But then they also gave judges the option to impose non-monetary conditions instead of just release, bail, or jail. So added discretion there, right. Previously for those lower level charges, judges could just do release, bail, or jail. So it took bail and jail off the table, but it said you can release with conditions, supervised release, etc. Then it created another category, right? It left a category where charges were bail eligible. Those were, you know, more serious charges, violent charges. It required judges in those cases to specify the risk of flight if they were setting bail. And then importantly, and this doesn't get talked about as often, and I think this is a really important part of the reform, it required judges to consider someone's ability to pay before setting a bail amount in those charges that were still bail eligible. And it also required judges to set three types of bail, one of which needed to be a partially secured or an unsecured bond.

So a partially secured bond is 10% and an unsecured bond is no money up front. So that means that if a judge is setting bail for one of those more serious charges, they have to say, okay, what's this person's ability to pay before they set the amount? And then they have to set a partially secured or unsecured bond. The rollbacks that have happened to the 2019 law have essentially made changes that make more low-level charges eligible for bail or eligible for remand to jail. Although they don't have to have bail set, they don't have to be remanded. They've also made additional circumstances bail and remand eligible. And the rollbacks also changed the requirement that judges set the least restrictive conditions to ensure that a person returns to court. They've added additional restrictive release conditions so judges can now do things like require drug treatment.

So generally, the rollbacks did things that were more punitive, right. They added more punitive things into the system, which is really disappointing because those rollbacks and the process that led to them were all based on politics and not evidence, right. There was not data or evidence that these things were necessary. It was really all politics. But I will say that on the whole, the system is still better than it was before reform.

Zining: Based on some parameters you have observed, how are judges being interpreting or, like, using this discretion in practice?

Erin: The reforms set parameters, right, like I just laid out. So judges don't have that discretion to set cash bail or jail people for the most part in those low-level charges. But they do have the discretion in the type of conditions that they set for those charges. And that's a broader range of options than they previously had.

And I think in places where services and options, judges are using lesser restrictive options, right? So say that there's a city that has just one program that is super restrictive supervision. Judges are going to choose a restrictive option versus somewhere like New York City where there's a very broad range and maybe they are going to release someone on recognizance or maybe they're just going to do like a light-touch check-ins instead of a heavy-touch supervision, heavy-touch supervised release. And I think that there's something in there that is not discussed often, which is like you can change a law, but it is difficult to change culture, right? And changing culture takes time. And when we have a system that is oriented around being punitive and oriented around control even in the pretrial setting, we have to think about the ways that we are approaching implementation and approaching culture shift even after we've passed a law.

As far as discretion for the more serious charges, they obviously may maintain the discretion to release, release with conditions, release or set cash bail or remand to jail. And I think we're still seeing cash bail being set frequently and we're still seeing cash bail be set at unaffordable levels, even though there are those three types of bail that need to be set, one needs to be partially or unsecured. We're seeing partially secured bail being set and we're seeing bails being set at higher amounts. So that even when that partially secured bail is being set, that may not be affordable, right? If you are setting a $50,000 bond and the partially secured is $5,000 and someone does not have $5,000, that is still resulting in bail that someone can't pay. And so I think one of the challenges is that the rollbacks to the law have also created confusion and greater complication. And so like I said, I think that shifting the culture is something we really need to focus on.

And I think broad education and then also oversight of implementation is a really necessary next step in New York.

Zining: I'd love to broaden our perspective and talk about the future directions in more, like, a national sense for pretrial justice. And from your view, what is the most urgent areas for this reform across the country?

Erin: Yeah, I mean across the country there, there's just an urgent need for reform to the pretrial system overall. If you read the news at all, if you set up a Google alert at all for cash bail or jails, you will see that jail overcrowding, jail conditions is a pervasive problem. Jail deaths are a pervasive problem. And again, if we are going to get at this, we have to reform the cash bail system. On any given day, there are nearly 500,000 people in jail across the country. The vast majority of those people are there pretrial. The vast majority of people are there on unaffordable cash bail.

And so the most urgent legal reform needed to the pretrial system is to eliminate cash bail. But we have to do that really thoughtfully, right? Because you can eliminate cash bail and if you don't do it in the right way, if you don't do it with sufficient legal safeguards and sufficient due process, you can end up with a system of mass preventative detention and mass remand. So you can't just get rid of cash bail. You have to set up the due process and the guardrails for judicial decision-making that make pretrial detention the strictly limited exception, right. You have to put into place the legal safeguards that make sure the system remains in line with Salerno. And so that's a complicated process, right.

And across the country, you know, I think when we're in states and when we're in cities that have well-funded legal systems, we take for granted access to counsel. There are a lot of cities and there are a lot of states where the right to counsel is not actualized and is not realized because public defense is not fully funded. So that's a major reform that is urgently needed in a lot of places. Funding courts so that hearings can happen within 24, 48, or 72 hours, so that people aren't waiting in jail just to have an arraignment or first appearance, is a critical reform. So there are a lot of steps that are important that can be taken on the road to ending cash bail.

Zining: Since one of the things we talked about is how to reshape our legal system surrounding the bail, what kind of constitutional or legal challenges do you think that could realistically reshape this pretrial system?

Erin: Nationally, I think there are two trends that I see, two challenges that I think advocates should really look out for. The first is what I just mentioned, expanding preventative detention without those sufficient due process guardrails on judicial decision making. And then the second is expanding the role of money bail in the pretrial system. And we are seeing this in real time. So examples of where we are seeing this are both in the federal context and then also in the trend of changes to the right to bail in state constitutions and in state legislation.

So folks may have seen this recently in the news. There's a federal law that just moved through the House of Representatives that would change bail on D.C. D.C. has reformed its pretrial system over 30 years ago to effectively eliminate cash bail. The law has been extremely effective. Close to 90% of people are released pretrial and 90% of people are not rearrested while they are released pretrial. The legislation that passed the House, it has not moved through the Senate yet, would require, it would mandate detention for more serious charges, for violent charges. That expands that category. That's obviously flatly unconstitutional. And then it would also mandate cash bail for lower-level charges, public disorder charges. That is a proposal that holds both of those trends, concerning trends that I just mentioned.

On the constitutional right to bail front, in 2022, Alabama amended their constitution to dramatically expand the list of charges that are eligible for preventative detention, where previously their state constitution only allowed for bail, bail meaning release, not necessarily cash bail, that could only be denied for capital offenses. And they expanded the list of eligible remand charges without embedding due process protections.

In 2023, Georgia passed a law called SB 63, which expanded the list of charges that require cash bail to include misdemeanors. That law is currently being challenged on multiple fronts in court. So this is a very real challenge and it would dramatically reshape the pretrial landscape. It would undermine constitutional law if it mandated pretrial detention. But even more deeply, embedding the role of money bail would be a dramatic shift.

Zining: And let's kind of close our interview with the more positive side, where do you see the most promising opportunities for the reform or progress in the following years? This can be, like, legally, politically, or through any advocacy work.

Erin: Yeah. And I'm glad that we're ending here because there actually definitely are really promising opportunities. So I know I just went through a bunch of negatives and concerning things, but there really are promising opportunities in each of those areas.

And if folks really want to dig in, I'd actually refer to a report that we released earlier this year called Beyond Bail, where we reviewed positive reforms, bail reforms across the country in, you know, with modern time, the last 10 to 15 years. And in over 30 jurisdictions across the country, there are over 30 reforms. The momentum is there, right. What we hear about in the media is often negative. I think that fear is something that gets a lot of media attention. But the momentum is there and the movement is there. And that's because this issue affects so many people.

So there have been really strong, successful legal challenges around unaffordable cash bail that results in pretrial detention, that have resulted in reform. So in California, for Katie, that case has led to $0 cash bail in Los Angeles pre-arraignment bail. Humphrey is another case in California. In Texas, the O'Donnell case has led to reform in Harris County, misdemeanor bail reform in Harris County.

There's also advocacy around these amendments to the constitutional right to bail that have created quite a lot of opportunities. So just this year in Texas, there was a constitutional amendment that was introduced called SJR 5, and in its initial form was really regressive. And the Bail Project is part of a coalition there, a long-standing coalition of advocates, and we pushed back in coalition and were able to improve that amendment substantially. So while it is still a, still an amendment that does expand the charges that are eligible for preventative detention, it embeds extremely strong due process, pretty groundbreaking due process. So it requires clear and convincing evidence, the highest standard, that someone poses a public safety risk.

It requires that there be counsel at a bail denial hearing. It's the first constitutional amendment to the right to bail in the entire country to require counsel at a bail denial hearing, rather than just having the standard be return to court. It's a risk of willful flight, which is a much stronger legal standard, right. Failure to appear is like you forgot to go to your dentist appointment, right. That's a very easy standard to meet when making an assessment, but willful flight is much more challenging.

So there's really an opportunity, even when a regressive amendment is introduced, to organize and advocate and turn something that could have been regressive into something that embeds really groundbreaking due process. And then community advocacy, like you said, that is where I think all power to make real change begins. As I mentioned, this is an issue that impacts so many people.

There's an organization called Forward US that put out a report several years ago called the Every Second Report, and it found that one in two adults in the United States has an immediate loved one who is or has been incarcerated. That means that when communities are stable, when people are able to stay home with their families, when they are able to keep their jobs, when they are able to fight their cases from a place of freedom, communities stay stable, right? And that is what safe communities look like. So I think the opportunities for community advocacy, which is what led to the reforms in New York, which is what led to bail reform in Illinois, which is what led to improving the constitutional amendment in Texas, the opportunities I think are endless.

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Zining: One takeaway is how bail reforms have moved in three distinct waves.

The first, in the 1960s under the Kennedy administration, challenged the fundamental unfairness of a system that kept people in detention based on personal wealth, whether an individual could afford bail or not. The second wave in the 1970s and 1980s resulted in significant backlash. Tough-on-crime politics later shifted the focus from wealth-based detention to public safety. The landmark case United States v. Salerno is a result of this shift. Instead of just asking whether the individual will show up to the court, judges had to ask a new question on whether granting this individual pretrial freedom poses a risk to the public. This balancing test changed how pretrial detention works in America.

Currently, we are at the herald of the third wave of bail reform, that is distinguished by its bottom-up approach. Community bail funds and state coalitions are working to abolish monetary funds. For example, the Chicago Community Bond Fund helped build the coalition that successfully abolished money bonds in Illinois. Meanwhile, reform campaigns in New York have pushed beyond bail to tackle the broader pretrial system, including speedy trial timelines and discovery laws.

As both Professor Simonson and Erin George emphasized, efforts to change the law and efforts to change the culture of the bail system are not in conflict. However, it is not sufficient to have just one of them. A lasting reform needs both the safeguards of our legislative system and a cultural shift in judges, prosecutors, and the public's perception of who deserves to be free and what it actually means to keep a community safe.

That being said, the bail system is also part of the broader criminal justice system. As Professor Simonson argues, the current criminal justice system has produced more harm than healing. From bail to pretrial detention to mass incarceration, communities have borne the weight of these policies for generations. Despite the widely held view that caging people in prison keeps us safe, the evidence suggests a different story. The resources we continue to pour into the prison pipeline could be redirected towards community support, connection, and restoration that actually addresses the root cause of harm in the first place.