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Cash Bail Is Unfair and Violates Due Process

Reversing progress on bail reform is a new flashpoint in the GOP’s culture wars.
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Many Americans haven’t heard of cash bail. But the idea is central to an election year battle over racism, policing, and mass incarceration.

When arrested on suspicion of committing a crime, everyone in the United States has the right to due process and to defend themselves in court. But in a cash bail system, when judges set bail amounts, those who cannot pay the full amount remain jailed indefinitely — a clear violation of their due process rights — while the rich can pay their way out of jail.

A 2022 report by the U.S. Commission on Civil Rights examined the impact of cash bail and found that between 1970 and 2015, the number of people jailed before trial increased by a whopping 433 percent.

There are currently about half a million such people stuck in jails across the nation who haven’t been tried or convicted of any crimes. The report also found “stark disparities with regards to race,” with Black and brown men most often subject to higher bail amounts.

Thankfully, many states and cities are moving to reform this unfair practice.

In 2023, Illinois became the first state to entirely abolish cash bail. Other states, such as New Mexico, New Jersey, and Kentucky, have almost entirely ended cash bail requirements in recent years. In California, Los Angeles County has also similarly eliminated cash bail for all crimes except the most serious ones.

But in this election year, Republicans are  olling back these efforts — most recently in Georgia.

The state recently passed a bill expanding cash bail for 30 new crimes, some of which appear to be aimed at protesters, such as unlawful assembly. Further, it criminalizes charitable bail funds — and even individuals — that bail out people who can’t afford to bail out themselves.

Marlon Kautz, who runs the Atlanta Solidarity Fund, called cash bail “a loophole” in the criminal justice system, allowing courts to indefinitely jail people without charges if they cannot pay exorbitant bail amounts.

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“Police, prosecutors, and politicians want a bail system that allows them to punish their political enemies, poor people, and people of color without trial,” said Kautz, whose fund has bailed out people protesting a massive new police training facility opponents call “Cop City.” Kautz was one of three people affiliated with the fund to be arrested on apparently politicized charges last year.

Reversing progress on bail reform is a new flashpoint in the GOP’s culture wars. “It could be a sign that Republicans intend to bash their Democratic opponents as soft on crime,” the Associated Press reported. Alongside Georgia, Republicans in Indiana, Missouri, and Wisconsin have introduced numerous bills expanding the use of cash bail.

Expanding the racist criminal justice system is a cynical GOP election-era ploy, one that has little to do with public safety.

“It is exceedingly rare for someone who’s released pretrial to be arrested and accused of a new offense that involves violence against another person,” said Sharlyn Grace, an official at the Cook County Public Defender’s office in Illinois. “Fears about public safety are in many ways greatly overblown and misplaced.”

“National studies contradict” the claim, the AP adds, that people are any less likely to show up for a court date if they’re released without bail.

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Election years are a scary time for people of color in the U.S. They are marked by race-based voter suppression efforts, a rise in racist political rhetoric, and even a surge in racist hate crimes. The expansion of cash bail laws is yet another attack on Black and brown communities — one that must be exposed and confronted.

We shouldn’t let reform efforts fall victim to election year politics.

This commentary was produced by the Economy for All project at the Independent Media Institute and adapted for syndication by OtherWords.org.

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Picture of Sonali Kolhatkar, Independent Media Institute

Sonali Kolhatkar, Independent Media Institute

Sonali Kolhatkar is an award-winning multimedia journalist. She is the founder, host, and executive producer of “Rising Up With Sonali,” a weekly television and radio show that airs on Free Speech TV and Pacifica stations. Her forthcoming book is Rising Up: The Power of Narrative in Pursuing Racial Justice (City Lights Books, 2023). She is a writing fellow for the Economy for All project at the Independent Media Institute and the racial justice and civil liberties editor at Yes! Magazine. She serves as the co-director of the nonprofit solidarity organization the Afghan Women’s Mission and is a co-author of Bleeding Afghanistan. She also sits on the board of directors of Justice Action Center, an immigrant rights organization.

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