Sanders’ Plan to Eliminate Bail Could Hit Corporate Roadblock
Local advocates who have fought to eliminate bail at the state level say the well-funded bail lobby will fight to keep a system that monetizes criminal justice
TAYA GRAHAM: This is Taya Graham, reporting for The Real News Network in Baltimore City, Maryland.
I’m here with Dayvon Love. He’s the director of public policy for the racial justice think tank Leaders of a Beautiful Struggle. We’re here to discuss Senator Bernie Sanders’ proposal to eliminate cash bail on a national level, and to talk about his organization’s efforts to pass bail reform here in the state of Maryland. Sanders’ proposal would eliminate cash bail on the federal level, offer money for state pre-trial services, and withhold grants for states that continue cash bail.
So tell me what the original purpose of money bail was, and what’s its actual effect on the community?
DAYVON LOVE: So if you think about when a person is incarcerated pre-trial, there are two things that are traditionally supposed to be looked at: Whether or not a person is a danger to the community, or whether or not they’re a flight risk, whether or not they’re going to show up to court or not. Bail was, you know, bail is often served as kind of an intermediary. Something in between letting people going on their own recognizance, and holding a person.
And so bail, as, you know, an industry that has profited off of the fact that they’ve been seen as and function as kind of the in between, letting someone on their own recognaizance, and holding someone without bail.
TAYA GRAHAM: Now, it’s interesting that you mention profit, because some of the for-profit bail industry corporations have made anywhere between $1.4-2.4 billion dollars a year helping incarcerate people. Hasn’t that been an issue when trying to pass bail reform?
DAYVON LOVE: Well, in Maryland one of the things we did during the 2017 General Assembly is change a court of appeals ruling. Or to have the Court of Appeals rule, rather, that nonfinancial conditions for release should be privileged above financial conditions, bail. And one of the things we encountered was a bail lobby that was very well resourced. And the state of Maryland, between 2011 and 2016, they made $265 million worth of revenue. And so a lot of that money was demonstrated in their advocacy against the work that we were doing during the General Assembly.
TAYA GRAHAM: Now, Senator Bernie Sanders has proposed eliminating cash bail, and says that incarcerates the poor.
DAYVON LOVE: Well, I mean, part of the problem is that when you have profit involved in the criminal justice system, it disproportionately impacts poor people and people of color. So for instance, the Office of the Public Defender did a report in 2016. And they found that between 2011 and 2016 there were 17,000 people in the state of Maryland that were incarcerated for three days or less because they didn’t have $500 or more to be bailed out. And so, you know, when you look at the bail industry’s interest, they have an interest in being that in between. They have a financial interest in the criminal justice system trusting them to try to make sure people get to court.
And our argument is that, you know, many of the advocates against the bail industry say that should be left up to community-based organizations. That should be left up to pre-trial services to be that kind of in between to both make sure that people get the services they need, but also it’s just a more effective, and really more humane way of dealing with folks pre-trial.
TAYA GRAHAM: Now, you push for reform of cash bail on a state level to help your city and to help your state. What were some of the obstacles you faced, and what were some of the arguments against abolishing cash bail?
DAYVON LOVE: Well, the whole idea of the abolition of cash bail is complicated, because the bail system is kind of baked into the way that judges are used to rendering decisions for folks incarcerated pre-trial. And so the move that needs to happen is a move away from cash bail and a move towards a system where you engage community-based organizations, you engage people from the community to go and make sure that folks kind of show up to court to make sure that the person is getting the proper services they need.
So when we think about abolishing cash bail, for us the important argument has been to build something to replace the system that currently exists. And so that’s one of the things that the opponents of bail reform say, is that, well, what do you replace it with? And our argument is that we need to replace it with a community-based infrastructure that can administer services. And again, there’s an interest. There’s a financial interest. If you’re an insurance company that, you know, does business in the bail industry, you have a financial interest on increased levels of incarceration. And so I just think it’s important that in any way possible we take the profit motive out of the criminal justice system.
TAYA GRAHAM: The change you push for to ask judges to consider a person’s financial status when setting bail, what effect has that had on the state? What have you seen?
DAYVON LOVE: So the Court of Appeals ruling that came down prior to the 2017 General Assembly, that rule- or during the 2017 General Assembly- that ruling said the judges should exhaust all non-financial conditions before considering cash bail, and that when they do consider cash bail it should be a bail that the person can afford. The results have been mixed. So the good news is that bail premiums have decreased. The good news is that there are more people being let out on their own recognizance. Some of the bad news is that there are folks that are being held without bail that would traditionally be given bail.
And so the work moving forward that will be coming up in this General Assembly will be to try to provide more resources for pre-trial services, particularly in jurisdictions in the state of Maryland that don’t have pre-trial services. So like Baltimore City has pre-trial services, Montgomery County has pre-trial services, St. Mary’s County. But you have kind of more obscure areas around the state that don’t have those pre-trial services where people end up being held without bond. So the idea is to invest more in pre-trial services so that judges in those jurisdictions have an alternative to bail as the in between holding someone or letting them go.
TAYA GRAHAM: The bail industry said people won’t show up for trial if they’re not given bail, and that would affect public safety. Has that happened?
DAYVON LOVE: So you know, what’s interesting is that in this same-. Or I don’t know if it’s in that report. So the public defender’s done some extensive study on this. And what they’ve shown is that so if you think about secured bail and unsecured bail, so unsecured bail means you only owe if you don’t show up, as opposed to secured bail, which is you pay up front, and if you come you get your money back. What’s interesting is what they observed is that there is no statistical difference in rates of appearance between the use of unsecured bail and secured bail.
So what that goes to show is that the incentive that the advocates for the bail industry say, that making a person pay gives them, quote-unquote, skin in the game to make sure they show up, that that, as far as the data has beared out empirically, it’s just a false statement. You know what I mean? And so I think it’s important for those who are paying attention to the fight around bail to keep track of the fact that the bail industry is going to use some of this whole thing around them making sure that they get people to court. But the data shows otherwise.
TAYA GRAHAM: So what have some of the benefits been to the community? For example, what kind of money has been able to remain in the community without people having to go through this bail process?
DAYVON LOVE: So it’s hard to give an exact number at this point, because there’s still data being, you know, tracking what the impact has been. What we do know is that bail premiums have decreased. And so that means that less families are being faced with the decision as to whether to pay their rent or whether to pay their bail. And so, you know, that is, you know, was the stated purpose. Bail reform is making sure people, working class, poor folks, don’t have to make that decision as time goes on. We hope to be able- organizations hope to be able to gather that information so that we can develop a real assessment of it.
But again, like I mentioned before, that $265 million in revenue that the bail industry got between 2011-2016, whatever percentage of that is decreased in terms of their revenue is money that stays in the pockets of folks who are poor and working class.