In January, Roger Stone, a Trump advisor and longtime Republican operative, was arrested by the FBI in a widely publicized predawn raid. Despite the militarized theatrics of his capture and his multiple felony charges, he was walking free the same day on a $250k signature bond. Without paying any actual cash—so long as he returns to court—the fact that Stone has a quarter million dollars in his possession was sufficient to accord him the dignity of walking out of jail for free. This option is not available to everyone. A 2017 ACLU report estimated that 70% of the more than 630,000 people in local jails in the US had not been convicted of a crime. For poor prisoners, this pre-trial period may extend indefinitely.
The primary mechanism for these detentions is cash bail, whereby prisoners pledge an amount of money as collateral for their pre-conviction freedom. For the wealthy, this is a formality, the first step in a sequence of payments by which rich people can avoid criminal responsibility for almost any crime. For impoverished working-class prisoners, however, bail amounts as low as a thousand dollars can lead to pre-trial detention lasting years. For Sandra Bland in Texas and Kalief Browder in New York, this amounted to a death sentence. In response, calls for the abolition of cash bail have been increasing from a range of sources with radically different agendas. We should be clear as to what cash bail abolition means for socialists.
The concept of a stratified criminal system is not new. Ancient Rome had explicitly different criminal procedures for free and slave members of society, where torture was banned in the case of upper-class defendants, and routinely used against defendants and witnesses who were enslaved. Under the Yassa codes of Genghis Khan and his successors, Mongol jurisprudence assigned different fates to different social strata. As it was forbidden to spill the blood of nobles, death penalties for those of noble birth were carried out without blood spilling. Under capitalism, which is the generalized commodification of everything, the freedom to walk out of jail becomes a tradable asset, assigned a numerical value and paid for out of private reserves of wealth. Cash bail dramatically increases the power of the police, who are empowered to act as state-funded extortion gangs able to enforce threats of indefinite detention against impoverished working class people—even without legal proof of a crime.
Modern opponents of this practice include Google, Facebook, Koch Industries, and members of both US capitalist parties. Is it possible that these stalwarts of capitalism want to eliminate mass incarceration? With no corresponding calls to abolish the police or prisons, there’s no reason to think they have. It’s clear, therefore, that opposition to cash bail can represent diverse class interests. As for socialists, we cannot support cash bail abolition in the abstract when it means consolidating the mass incarceration complex in concordance with the Koch brothers.
Take the example of Democratic Presidential candidate Senator Kamala Harris, a former prosecutor and California Attorney General who built her career caging poor black and brown workers. In 2014, her office argued against the release of prisoners on the basis that to do so would deprive the state of California of a cheap labor pool. Harris also co-sponsored a Pretrial Integrity and Safety Act with Republican Senator Rand Paul, which they defended together in a New York Times editorial. In it, they call for state-level bail reform following the example of changes in Kentucky and New Jersey that “shifted from bail toward personalized risk assessments that analyze factors such as criminal history and substance abuse.” For a former prosecutor to advocate a shift to “risk assessments” that prioritize criminal histories—when Harris made her career applying criminal histories to as many people as possible—defies any seriousness. New actuarial approaches are merely an updated version of cash bail, optimized for a new environment rich with data and analytic surveillance tools.
A more interesting approach is the Bail Project, a circular bail fund aggregating donation money to pay bail for people in pre-trial detention, then recycling the funds to pay bond two or three times per year, as funds are returned when defendants show up for their court dates. A 2007 program on a similar model, the Bronx Freedom Fund, implemented a revolving bail fund. Data from the Bronx showed that 96% of the people they bailed out of jail returned for their court dates. It’s worth considering what proportion of this 96%—many of whom lack private funds to bail themselves out—might be caught in a hypothetical “risk assessment algorithm” as advocated by politicians like Kamala Harris.
The system of cash bail and its variants is an object lesson in how the criminal justice system is heavily rigged in favor of the rich. A modest initial step toward the abolition of the capitalist police, courts, and prisons would be to expropriate the bail bondsmen and private prisons and defund the police departments. After the working class has won political power through the socialist revolution, the entire judicial code will be overhauled to reflect the interests of the majority, and the convening of people’s tribunals to hold the capitalist gangsters to account will be on the order of the day.