As Anti-Reform Activists Politicize Waukesha Attack, It’s the Cash Bail System That Needs Undoing

Why did the tragedy in Waukesha become such a polarized fight against bail reform?

The tragedy in Waukesha is truly a tragedy. There are lives lost, and that is not okay; each and every one of us deserves to be safe. That tragedy, though, is an outlier. Waukesha hasn’t passed bail reform, and we shouldn’t allow that false claim to stand. Moreover, this tragic incident is not representative of what happens when bail reform is passed. In every place that has enacted good bail reform, we can see from the research and data that the system, by and large, protects public safety and the safety of people who are released pretrial.

Yet what isn’t an outlier is how the media and opponents of reform manipulated the tragedy in Waukesha to push back against pretrial justice and bail reform. The false claim of, ​“Here’s what happens in a jurisdiction that does bail reform,” is powerful despite not being true.

Let me be really clear: Bail reform was not the cause for this person being released. He was released because he paid money and he got out. Our cash bail system — the status quo in Waukesha and in courtrooms across the country — is what failed us.

I wish the media would tell the real story here, which is why do we even have a cash bail system? Why do we remain committed to cash bail, the status quo, when, time and time again, it doesn’t deliver public safety? Why don’t we have a system where we prioritize releasing people with the right services and oversight to make sure that they remain safe in our communities? In the few cases where the facts demonstrate that the person can’t be safely released, why don’t we hold a hearing, with due process, before imposing detention? And if they’re detained, we make sure that their cases go to trial or are resolved quickly?

That is the pretrial system we’d adopt if policy, not politics, drove this issue. That’s the system that would keep us safe. And that’s so far from the system that is actually in effect in Waukesha or in many other places across the country.

Take us through the cash bail system and why it isn’t a solution to providing better public safety.

Cash bail fundamentally undermines justice and fairness. Money shouldn’t determine your freedom. And yet with a cash bail system, it does. And who does that harm disproportionately? It harms Black and brown and poor people.

Second, it is a perfectly reasonable expectation from all of us that different processes in the criminal legal system should deliver public safety, including our pretrial system. Yet money bail has no correlation with safety. A wealthy person who is a danger to somebody else can pay their way out while a person who is poor — who also poses no danger to anybody — simply remains behind bars. It’s nonsensical.

No judge has made the front page of a newspaper for setting bail too high. The media tends to question the status quo of the bail system only when bail isn’t used, or is set ​“too low,” and that one tragic outlier incident happens. And, at that point, the coverage is focused on that one outlier incident, a tragedy, rather than the absurdity overall of the money bail system.

One outlier tragedy shouldn’t drive policy. Our policy conversations about the pretrial system should be based on evidence, data, and solutions, because when media headlines drive those conversations, we inevitably make bad policy.

So often the headlines are filled with these outlier incidents, but we never hear of news stories about the people who are trapped in jail for months awaiting their case resolution because they can’t afford to buy their freedom.

Two-thirds of the more than 10 million arrests made annually in this country are for minor, low-level offenses that are considered misdemeanors, infractions, or violations. They are not arrests that implicate public safety. Yet there are close to 500,000 people who are incarcerated in our local jails and the vast majority are there because they have a bail amount they can’t afford. We have to ask ourselves: Is what we’re doing enhancing public safety? It isn’t. We are essentially imposing punishment for poverty.

In an ideal world, what does a strong pretrial system look like?

An ideal pretrial system wouldn’t allow for money or profit to drive decisions about release or detention. It would lead to far fewer people behind bars. It would also address racial disparities, which permeate the pretrial system from who is arrested, prosecuted, has bail set, and remains behind bars. Finally, an ideal pretrial system would protect public safety. On that final point, each and every jurisdiction where we have seen good bail reform enacted — New Jersey, New York, Harris County [Texas] — we’ve seen from the data and research that these reforms protect public safety.

That’s the framework for an ideal pretrial system, but to make it succeed we have to invest in holistic pretrial services on three fronts — to make sure people return to court; their needs are met; and that they stay safe while released.

Research has shown that all some people need to return to court is a reminder, such as a text message or phone call, leading up to the court date. For others, it’s help with childcare, getting time off from work, or transportation. There are many things the court system can do to ease those burdens, such as having childcare in the courthouse, giving people flexibility to select the date and time of their hearing, or to hold a virtual hearing when nothing significant is happening in court that day.

The second piece is what kinds of supports and services are needed to address the potential root causes of a person’s contact with the criminal legal system. For some people, that’s getting their benefits turned on or securing stable housing. For others, it’s connecting to counseling, education, treatment, and job training. Instead of relying on probation or law enforcement to provide these services, as many counties do, pretrial agencies should hire counselors, social workers, and peer specialists whose expertise is to figure what services and supports people need to succeed pretrial.

I want to make an important point about programming — be it counseling, classes, or treatment. Participating in programming shouldn’t be a prerequisite to or mandatory requirement of someone’s pretrial release. Too often we see people show up to court and stay arrest-free during the pretrial period, but if they don’t engage in a mandated program or class or activity the prosecutor or judge may still revoke their release and set bail or detain them. That flies in the face of fairness.

The third part is supervision and oversight. I want to underscore how important safety is because, without it, we undermine confidence and trust in the system. Consistently, we see that when people’s basic needs are met, when they get support and care, they are safer — to themselves and to others. However, that approach is at odds with what many pretrial systems look like today. The default with supervision and oversight is often electronic monitoring and drug testing, despite the evidence that those onerous conditions deliver no better (in fact, often worse) results than people who engage in voluntary services. We have to learn to trust that meeting people’s needs, rather than punishing them, is what will deliver public safety.

Why do you think it is that opponents of bail reform capitalize on times of tragedy, like what happened in Waukesha?

When we name the opponents of bail reform, we have to also name their interests. Let’s start with the bail bond industry, that has such a naked, shameless interest in the status quo. Their entire trade profits off the use of money bail.

With law enforcement, police, prosecutors, and sheriffs, financial interests are certainly still at play. They are looking to protect their agencies, whose budgets and size could change as a result of bail reform.

But their interest is also more abstract. Does justice reform lessen their power and influence? Diminish their role in producing safety in our communities? A FiveThirtyEight study from last year showed that despite a steady decline in crime over the past two decades, most Americans believe that year after year crime is increasing. Why? Because it is deeply entrenched in our brains — almost like a reptilian instinct — that arrests, prosecution, courts, and incarceration are what keep us safe. When Americans hear about justice reform — whether that’s arresting fewer people, ending cash bail, or releasing people from prison — our brains immediately think we will be less safe as a result despite the data and evidence to the contrary. In this country, for time immemorial, we have perceived safety as linked to somebody else’s incarceration. It is an idea steeped in racism and fear.

I’m not saying that all law enforcement, judges, prosecutors are solely self-interested. We increasingly see law enforcement and system stakeholders tout the public safety benefits of bail reform and justice reform more broadly. Some have family members and loved ones who have been arrested or locked up, or know from experience that justice reform is simply the right thing to do. But there are still too many who trade on that reptilian instinct of fear.

It’s interesting you bring that up because in recent weeks we’ve discussed the media’s role in reporting on bail and criminal justice reforms. Breaking crime news leads TV newscasts and front pages are filled with crime stories. It’s no wonder people have that perception of rising crime. 

We’ve all heard the expression, ​“If it bleeds, it leads.” Newspapers and television stations focus on only that one sensational case out of the thousands that come through the courts every day. Our nightly news coverage would be so incredibly boring if media outlets covered crime and public safety accurately according to the data and numbers. Media outlets would run countless stories about people who were released after an arrest and went home safely to their communities and back to their jobs. The one outlier tragedy would be buried among the tens of thousands of stories where nothing happened. It would be a radically different news cycle and shift in our perception of public safety and whether or not we are safe.

What did the media coverage of Waukesha get wrong?

As I said earlier, what happened in Waukesha is tragic. Steps should be taken to ensure history doesn’t repeat itself. However, if you’re diagnosing the problem incorrectly, you won’t land at the right cure. Here, the problem isn’t bail reform and the proposals we’ve seen in light of this tragedy — such as legislation that requires judges to set cash bail on more cases — isn’t a solution. Remember, cash bail was set in this case. More bail isn’t a solution because there will always be some wealthy person who can afford it. The real cure is a pretrial system where safety, not wealth, determines freedom.