Why the cash bail system will make the coronavirus pandemic much worse
These chilling words, long a backdrop for families unable to bail a loved one out of jail, have been transformed by the coronavirus pandemic into an indictment of the cash bail system itself. With the pandemic creating a growing public health and economic crisis, we cannot risk exacerbating it by conducting business as usual on cash bail.
The general idea of cash bail is familiar to most people because it continues to serve as the primary mechanism with which most courts decide to condition a person’s release prior to trial. Simply put, it is a dollar figure placed on a person’s freedom. The government will either hold that money or the person until the case is over.
So, where does the coronavirus fit into this picture? By dramatically raising the costs, in human and dollar terms, of both incarceration and freedom.
Let’s start with situations in which a person cannot pay their cash bail.
Removing someone from their family and community through pretrial detention was always disruptive and painful. The coronavirus has made it more so by doing it at the precise time in which families are sheltering in place, trying to juggle jobs and childcare simultaneously, and otherwise navigating the daily individual crises that everyone is experiencing right now.
In addition, that person is now in a jail facility where social distancing is likely a pipe dream. This adds one more body to a veritable petri dish that further endangers corrections staff and incarcerated individuals alike.
The picture is only slightly rosier should the individual secure their release.
As the health risks of cash bail fade, economic ones rise to take their place. In a time in which families need every cent they can find and government leaders are looking for ways to inject more money into the economy, cash bail takes large sums of money and freezes them where neither families nor the government can make use of them. It is, by definition, an anti-stimulus policy.
This is especially harmful because these burdens of cash bail do not spread evenly across our communities. Disproportionately, our criminal justice system ensnares minorities and the poor. This will further hamper our economic response to the coronavirus by concentrating the economic drag of cash bail on a smaller subset of communities and removing money from the pockets of those least able to weather lost paychecks. In a complex, interconnected economy, the financial ramifications of this loss of spending will ripple out to even seemingly unrelated areas.
State and local leaders are not helpless in the face of these issues. Indeed, a growing number have worked to mitigate the compounding threat of cash bail and the coronavirus.
St. Louis Circuit Attorney Kimberly Gardner, for example, instituted new policies to find cash bail alternatives for low-risk pretrial detainees. Likewise, the Washington Supreme Court issued guidance to its lower court judges to allow detainees to cite the coronavirus as an argument in favor of the reduction or elimination of cash bail.
These kinds of innovative actions recognize that the coronavirus has shifted the landscape right under our feet and fundamentally altered the cash bail analysis. The risk of flight and level of dangerousness should, of course, remain central to pretrial determinations. But it would also be foolish not to add these new costs and concerns to the calculation. Alternatives to cash bail, ranging from text reminders to additional monitoring, can protect public safety without undermining public health or intensifying the economic crisis.
We are living in an all hands on deck moment. We simply cannot afford to lock so many people up or put their valuables out of reach.
