A criminal justice revolution defies campaign lies

Crime as a campaign issue obscures the solution

Welcome to a Tuesday night edition of Progress Report.

We’re officially two weeks out from the midterm elections, which puts us at the tail end of the worst part of the campaign cycle: Debate season.

I generally try to avoid watching debates, but every once in a while, I fall prey to temptation and tune into a live stream. I’m going to have thoughts on the Pennsylvania Senate debate tomorrow, but tonight I want to quickly mention the New York gubernatorial debate.

Now, I’m no huge fan of Gov. Kathy Hochul, who assumed power when Cuomo resigned, did absolutely nothing for working families, and has run an apathetic campaign, but she’s miles better than her GOP challenger, Rep. Lee Zeldin, The guy is a sociopath, but he’s been closing in on Hochul in part because his obsessive focus on crime has benefited from a local media that has portrayed New York as a dystopian underworld, in defiance of all available statistics. (Mayor Eric Adams also deserves credit for stoking irrational fears.)

Zeldin has gone hard at New York’s modest bail reform law, which he has portrayed as the central cause of an imaginary spike in crime. It couldn’t be more misleading or damaging, because bail reform has been a life-changer for so many people. In tonight’s edition of the newsletter, we have a reported story about the biggest, most ambitious criminal justice reform project in the nation.

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by Noah Berlatsky

In 2015, following a family altercation, Lavettee Mayes was arrested and incarcerated for 571 days—more than a year and a half. She received no due process and no trial. Instead, she was held in detention under Illinois’ cash bail system.

Unable to pay the $25,000 necessary for release, Mayes watched her life crumble around her. “I lost my business,” she told me. “I lost housing. I almost lost custody of my kids.” Her two children were 7 and 14; she was going through a divorce and the children’s father did not let them speak to her or communicate with her the entire time she was held.

Months into her sentence she actually got the bail amount reduced. But, in a Kafkaesque twist, by that point she had already run through all her resources and couldn’t pay the lesser fee either.

Mayes is hardly alone. About half a million unconvicted people are in jail on any given day. Many of them, like Mayes, are being held not because they are considered especially dangerous, but simply because they cannot pay bond.

“It really is a way to circumvent existing limitations on when someone can be jailed awaiting trial,” Sharlyn Grace, Senior Policy Advisor at the Cook County Public Defender’s Office, told me. “And it's also essentially a regressive tax, and something that disproportionately harms black communities in particular, but also other communities of color and poor communities.”

But the system is changing. In January, Illinois is set to eliminate cash bail. After that, activists hope, what happened to Lavettee Mayes won’t happen to anyone else.

The statistics concerning cash bail and who it impacts are staggering.

Cash bail is a huge engine of injustice that targets Black and lower income communities. Unsurprisingly, most people who can’t meet bail are poor; a 2016 study found that those unable to make bail mostly came from the poorest third of society. The median income of those in jail is around $15,000, less than half the median income of non-incarcerated people.

In addition, Black and brown people in the criminal justice system have bail set at rates that are twice as high as those for white defendants. They are also 10-25 percent more likely than white defendants to be detained pretrial or have bail set in the first place.

The result is not only more Black and poor people in jail, but more Black and poor people with criminal records. Cash bail essentially blackmails people into pleading guilty. Mayes, for example, took a plea deal just to get out of lock up. She’d already spent more time in jail than she would have been sentenced to had she been convicted.

Mayes was released, but with a criminal record, she had trouble holding a job. In one position, she worked for three days before the boss found out about her criminal record and fired her. (She’s currently a Community Activist with the Chicago Community Bond Fund.)

Cash bail is such a standard part of media cop shows and public discourse that the idea of eliminating it can sound utopian and impossible. But as Sharlyn Grace told me, a number of criminal justice systems in the US do not use cash bail at all. The Illinois Juvenile Justice system, for example, doesn’t use cash bail. Washington DC has not used cash bail in 30 years. New Jersey mostly got rid of cash bail in 2014. So while Illinois would be the first state to entirely abolish cash bail, but its new approach is hardly unprecedented.

The movement to end cash bail in Illinois really started in 2016 with the formation of the Coalition to End Money Bond. That collective included the Chicago Community Bond Fund, which had been paying bonds for people in Cook County, as well as a number of other advocacy organizations.

The Coalition filed a lawsuit against money bond in Cook County, alleging that detention without trial violated the right to due process under state and federal constitutions. The lawsuit prompted Chief Cook County Circuit Court Judge Timothy Evans to revamp Cook County bail guidelines, putting in place a general order that prevented judges from detaining defendants solely because they were unable to pay bail.

The new regulations helped Cook County jail reduce its average daily jail population by 16 percent, according to a 2019 report. More, there was no corresponding increase in crime.

The success in Cook County helped pave the way for reform on the state level. In 2021, the Illinois legislature passed the Pretrial Fairness Act as part of the omnibus Safe-T Act. The act, signed by progressive governor J.B. Pritzker, eliminated cash bail in Illinois, effective January 1, 2023.

As the implementation of the law approaches, conservatives have been trying to fear-monger about it as a wedge in the November elections. Critics have claimed that the law creates “non-detainable” offenses, including second-degree murder. A newspaper clipping that has gone viral claims that Illinois is instituting The Purge, a reference to a horror film franchise in which all crime is legal for 24 hours.

Snopes labeled these claims “false.” “Attacking this law is part of a campaign to attack the Democratic governor and get a Republican governor elected,” Briana Payton, the Pre-Trial Fairness Act Policy Coordinator for the Illinois Network for Pre-Trial Justice, told me. “It’s not about actually educating the public about the truth of the law.”

In fact, eliminating cash bond is in part about ensuring public safety. Currently poor people who can’t pay and are no risk can be detained for months or years. But people who are a threat, and have a lot of money, can go free.

Payton pointed to Kyle Rittenhouse, the 17-year-old who killed two protestors in Kenosha, Wisconsin. Rittenhouse’s bail was set at $2 million — a substantial amount, which indicates the judge considered him dangerous or a flight risk. But Rittenhouse became a celebrated cause on the right. Actor Rick Schroder and MyPillow founder Mike Lindell and other conservative partisans quickly raised the funds to free him. So in fact, cash bail made it possible for him to leave detention, while Illinois’ system would have prevented that.

Under the Pretrial Fairness Act, in contrast, defendants accused of “forcible felonies,” stalking, domestic battery, or other dangerous crimes, will be identified by prosecutors as risks. There is then a speedy hearing to determine if the defendant is eligible for pretrial detention. If they are a risk, they are held. If they are not a risk, they are released. Cash bail, and ability to pay, have no place in the new procedures.

That’s surely as it should be. People shouldn’t be thrown in jail without trial just because they’re poor. People who are a risk to public safety shouldn’t be released just because they’re wealthy. The courts should consider whether you are guilty or innocent, not how much you have in your bank account.

Illinois advocates and progressives have fought for six years and more to end cash bail. The hope is that once it The Pretrial Fairness Act is implemented and proven a success, other states will be inspired to follow Illinois’ example. When that happens, we’ll be a step closer to a country in which we have justice for all, not just for the rich.

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