Commentary Law and Policy

Cash Bail Fuels the Prison Industrial Complex. But We Can Stop It.

Nnennaya Amuchie

People shouldn't have to pay to avoid incarceration before trial. But to end cash bail, we must use an abolitionist framework to question who gets put in cages and why.

In May 2017, I worked with organizers all over the country to raise thousands of dollars to bail Black mothers and caretakers out of prison cages for Mother’s Day. Many of these women could not grasp the idea of someone freeing them from incarceration without strings attached. They had been moved from program to program, restriction to restriction, case manager to case manager, often without explanation or assistance.

It’s not surprising that they couldn’t conceptualize the fact that someone bailed them out without demanding something in return—or that someone recognized the unfairness of being held in jail simply because you can’t pay to get out. As a society, we have created conditions where people are funneled in and out of jails. Though we’re taught people are “innocent until proven guilty,” the reality is that we treat people as if they’re guilty from the start.

That’s why one of the main goals of the “end cash bail” movement (a broad coalition of organizations and bail funds within the Movement for Black Lives) is to highlight that people should not be incarcerated in the first place. The movement looks at the root cause of the cash bail problem (the majority of people in local jails are being held in pre-trial detention) and proposes a solution that chips away at the current system.

Cash bail requires someone who is charged with a crime to pay in full, as assurance that they will return for their court dates. When someone cannot afford the cash bail issued by the judge, they are incarcerated while awaiting trial or until they are able to afford the payment. Many people use surety bonds, where a third-party bail bondsman pays for the bail amount in exchange for collateral, which often puts more people in debt.

Become a subscriber

Press freedoms are under attack now, more than ever.

SUBSCRIBE

Sixty percent of people in women’s jails have not yet been convicted of a crime and are awaiting trial. This means that our current jail system is punishing people before they have gone through due process and presented their case in front of a jury of their peers.

The prison industrial complex is profiting off these individuals. The concept of cash bail is fundamentally wrong, coercive, and violent. Bail gives the criminal legal system—and I use the term “criminal legal system” intentionally because it’s not about justice—the incentive to incarcerate as many people as it likes, however and whenever it wants.

But it isn’t enough to just end cash bail. We must also ask ourselves fundamental questions about why it exists in the first place and work to dismantle the systems that have allowed it to thrive. Abolition is the framework that pushes us beyond band-aid solutions and forces deep introspection and analysis into root causes and issues.

As defined by Critical Resistance (a national coalition co-founded by Angela Davis that organizes around  issues of the prison industrial complex), abolition is a political vision with the goal of eliminating imprisonment, policing, and surveillance and creating lasting alternatives.

Though abolition is often framed as idealistic and abstract, the framework asks important ideological questions that challenge us to create innovative solutions. Why are people being incarcerated? What’s behind the popular notion that some people deserve to be in a cage? What are the origins of the easy assumption that because someone is arrested, they have committed a crime? What is criminality? Who gets to determine criminality?

Abolition provides a broad vision to guide everyday, practical solutions to reducing reliance on the prison industrial complex, finding new ways to resolve harm in our communities, and building systems that recognize the full humanity of everyone.

Working toward abolition demands we reshape our individual and collective thinking and behavior. For example, when I am having an argument with a friend, do I call the police or do I find ways to mediate the conflict? When I see someone who appears to be intoxicated in public, do I call the police or do I connect them with resources or simply leave them alone? When I see a homeless person sleeping on a sidewalk or “trespassing” to find a warm place, do I call the police or do I connect them with resources or simply ask them if and how I can help?

We have many of the answers and strategies to solve our own problems and solve our community problems without relying on state violence. In fact, the racial justice group SURJ-DC put together a handout detailing alternatives to calling the police. Abolition constantly challenges me as an organizer to broaden my horizon of what is possible and gives me a set of values and principles to inform the projects on which I work.

In short, abolition makes us question how and why society’s structures exist, and through this process, we often arrive at deep contradictions.

If we believe that crime, punishment, and incarceration are related in this country, then we must also believe that poor people and people of color are inherently criminal. Black people are five times more likely to be incarcerated than White people in the United States, and nearly half (47 percent) of Black trans folks have been incarcerated at some point in their lives.

An abolitionist politic forces us to consider the conditions that lead certain groups of people to be incarcerated or have law-enforcement encounters at such high rates. Social positionality such as race, gender, class, sexuality, ability, and immigration status have a greater impact on rate of incarceration than “crime.” Even before people are incarcerated, the disproportionality of interactions with police officers is staggering. One report in Washington D.C., found that 80 percent of people “stop and frisked” by the police were Black, though Black people are only 50 percent of the population. Black people in the city are overrepresented in daily interactions with police, putting them at greater risk of arrests and incarceration. According to a Prison Policy Initiative report, the median annual income for individuals involved with the justice system before their incarceration was $19,185—that’s 41 percent less than their nonincarcerated counterparts, on average.

Furthermore, those living at the margins (poor, Black, immigrant, disabled, LGBTQIA+) are more likely to be incarcerated, not because they are more likely to commit a crime but because they are the most policed. Police arbitrarily determine what is criminal behavior or activity and recommend charges to the district attorney. For example, a Human Rights Campaign report found that police officers often stop and search people for condoms and use them as “evidence” of prostitution. District attorneys often decide to file those charges based on the police report, funneling more people into jails and prisons. Most cases heavily rely on the police officers’ subjective reports. Most courts take police officers’ words as fact and base their decisions and rulings on those “facts.”

And guess what? Most cases never make it to court. Police are essentially your judge, jury, and executioner. Police officers and district attorneys function as the gatekeepers for the prison industrial complex. So if you are anti-prison industrial complex, you must necessarily want to abolish the police. The alternative to policing is a deep investment in housing, economic security, transportation, comprehensive health care, diversified and affordable education, community restorative justice and conflict-resolution programs, violence interrupters, trauma centers, mental health specialist and counselors, and food security.

Policing doesn’t make our communities safer, and many studies have found that the majority of people who are incarcerated are also victims of crimes, particularly those in women’s prisons and jails. According to the American Civil Liberties Union, nearly 60 percent of people in state women’s prison nationwide, and as much as 94 percent of some women’s prison populations, have a history of physical or sexual abuse before being incarcerated. If the majority of people in women’s prisons and jails are survivors of sexual and interpersonal partner violence, how are these institutions solving or preventing violence and not criminalizing victims?

Research has long found that incarcerating an individual isn’t a deterrent. It does not prevent them from being incarcerated again or getting “rehabilitation.” In fact, a 2013 study found that youth incarceration significantly decreases the likelihood of high school completion and increases in the likelihood of adult incarceration.

If the legal system worked, it would be shrinking and organizing itself out of existence. Fewer people would be incarcerated since the system would be solving the issue by warehousing “offenders” and deterring “crime.” But as the Open Philanthropy Project reported, the best estimate of the impact of additional incarceration on crime in the United States today is zero.

We must exercise our collective power to disrupt, intervene, and destroy this violent system. Abolition requires us to dream of freedom beyond what we think is “realistic or pragmatic.”

So what do we do between the future and now?

Divest Resources from Law Enforcement, Invest in Social Services

From 2015 to 2018, the homeless population in Los Angeles rose from less than 29,000 to 59,000. Many of those homeless Angelenos were formerly incarcerated, and many will again be incarcerated for being homeless. Yet, according to the Center for Popular Democracy’s “Freedom to Thrive” report, Los Angeles spends 25.7% of its general fund budget on policing compared to a mere 3 percent to support nondepartmental “General City Purposes,” which includes city council spending on jobs, youth, homeless services, and substance abuse programs.

Create More Resources for People Dealing With Interpersonal Violence

Organizations like the Rose City Copwatch in Portland, Oregon, and INCITE! have presented alternatives to calling the police for interpersonal violence. Such alternatives include rape crisis centers, safe houses for people dealing with abuse, de-escalation organizations, violence interveners, sanctuary cities, and restorative justice programs.

Decouple Mental Health Services From Policing

Another recent report found that individuals with disabilities make up a third to half of all people killed by law enforcement officers; they make up the majority of those killed in use-of-force cases that attract widespread attention. Because of this, places like Portland are already working toward divesting from police and investing in mental health services. The city’s Unity Center for Behavioral Health “aims to take Portland Police out of the equation when it comes to 911 calls about mental health. They are working with emergency medical services to respond to such calls instead.”

Decarcerate, Decarcerate, Decarcerate

In most states, governors have the power to commute or pardon a criminal sentence. We can pressure or elect governors who are committed to decreasing the number of people in cages by boldly exercising their pardon power.

Decriminalize ‘Quality of Life’ Crimes, Sex Work, and Drugs

By decriminalizing a full range of “crimes,” we can decrease the frequent and violent interactions poor queer and trans people of color have with police officers. Currently, in Washington, D.C., the Sex Workers Advocates Coalition is working to fully decriminalize sex work as one step in reducing police contact with sex workers, improving health and access to resources for sex workers, and reducing the stigma associated with people who engage in the sex trade.

Organize Participatory Defense Campaigns

A participatory defense campaign is a grassroots efforts to secure the freedom of incarcerated individuals by pressuring authorities, attending to prisoner needs, and raising awareness and funds. Survived and Punished, which advocates against the criminalization of people experiencing domestic and sexual violence, created a toolkit with tips, lessons and resources for organizing defense campaigns to support survivors and abolish gender violence, policing, prisons, and deportations.

Advocate for Laws That Increase Police and Prosecutor Accountability

What would happen if we fired every police officer who murdered someone? Raped someone? Harassed someone? Racially profiled someone? What if police were actually held accountable for their Fourth Amendment violations? What if we did not defer to prosecutors for criminal justice reform and held them accountable for the number of people they put into cages daily? What if there were laws in place to de-incentivize prosecutors from convicting people of crimes or forcing plea deals?

Let’s push for more accountability.

Load More