Opinion | I Run a Bail Fund. And I Have a Message for ‘Progressive’ Prosecutors.
In late September, with the Covid-19 pandemic raging, District Attorney Larry Krasner of Philadelphia, a leader of the so-called progressive prosecutor movement, spoke to a national virtual audience at the prestigious Atlantic Festival.
On the same day, we at the Philadelphia Bail Fund worked to ensure a Black woman’s release from jail by paying for her freedom. Unemployed and pregnant, she faced her first-ever criminal charges. But Mr. Krasner’s office requested a $999,999 bail, which would have kept her trapped in a mildewed, roach-infested jail, awaiting trial without having been convicted of a crime, while Covid threatened her and her baby.
That juxtaposition — a “progressive” prosecutor lauded by the media while using the very practice he campaigned against to detain a poor, pregnant Black woman — is emblematic of the widening gap between the rhetoric and the reality of criminal justice reform.
It reveals a jarring truth: In the midst of a pandemic, when bold, radical change is needed most, too many “progressive” prosecutors have largely not shown up as the heroes some hoped they would be. It has proved that there are sharp limits on the kind of change we can expect from prosecutors.
For example, consider how Mr. Krasner has approached bail during the pandemic. Courts are supposed to set cash bail only to ensure that people return to court for their hearings. But in Philadelphia, the poorest big city in America, it’s often impossible for people to pay the 10 percent of their bail needed to secure their freedom. They risk losing their jobs, their housing, their custody of children and, with the pandemic, their lives.
This is the argument for ending cash bail and other forms of pretrial detention: They have become a driver of mass incarceration, as countless people, disproportionately Black and poor, are incarcerated before trial, convicted of no crime except an inability to pay for their freedom.
Mr. Krasner, who has claimed he supports ending cash bail, announced last March that to deal with the pandemic, his office would simulate a no-cash-bail system by making bail requests binary: Either people should be released or they should be held on $999,999 bail, a de facto detention order, if they were “a serious risk to public safety.”
This approach enables him to skirt the due process protections and evidence that should accompany a request for pretrial detention. Instead, he is encouraging magistrates to set unattainable bail in hearings that can take just moments. This, despite the Pennsylvania Supreme Court’s recent reaffirmation that cash bail may not be used to ensure someone remains incarcerated until trial.
But our analysis of over 450 randomized bail hearings from March to May 2020 revealed that his prosecutors requested $999,999 bail in over 50 percent of bail hearings. A representative for Mr. Krasner, Jane Roh, said our report “omits important context,” including what she said is an increase in the proportion of bail hearings that involve more serious cases after March, when police froze some arrests on certain low-level charges.
But she did not provide any data to refute our report’s numbers, and a more recent analysis by the Defender Association of Philadelphia, which provides free legal representation for defendants in criminal cases, found similar ratios months later, after those arrests had resumed. And there’s no context that changes the reality that attempting to detain about half of presumptively innocent people arrested pretrial is morally abhorrent, especially during a pandemic.
No-cash-bail jurisdictions, like New Jersey and the District of Columbia, albeit imperfect, ultimately detain about 7 to 8 percent of people who are charged pretrial. By asking for people to be detained at a rate almost seven times that, Mr. Krasner isn’t just breaking his promise to end cash bail; he’s embracing cash bail.
While Philadelphia’s jail numbers dropped for part of last year, it was after our fund and others paid millions of dollars to free hundreds of people during the pandemic. Police temporarily froze arrests for certain charges. And the courts, under pressure from grass-roots organizers, agreed to release some incarcerated people through emergency hearings.
The problem is not confined to Philadelphia, especially when it comes to bail.
In Chicago, a “progressive” state’s attorney, Kim Foxx, said in March that her office was “working around the clock with the Cook County sheriff and public defender to ensure any individuals who are not a threat to public safety are released from Cook County Jail.”
In saying that, she portrayed herself as someone who wanted to minimize the number of people behind bars during a pandemic, adding that her office would “agree to appropriate releases for the duration of this pandemic, to limit the number of people in our jail and reduce the number of people needlessly coming to court while recognizing there are both public health and safety risks that some detainees may pose.”
Although hundreds of inmates were eventually released, an independent review of her office by the Chicago Appleseed Center for Fair Courts showed something very different: Prosecutors with Ms. Foxx’s office contested the overwhelming majority of motions for bond reductions from March to May, despite the local jail at the time being the nation’s largest known source of coronavirus infections.
Baltimore’s state’s attorney, Marilyn Mosby, signed a national letter from prosecutors promising to reduce jail admissions during the pandemic. While she said her office should be credited for decreasing arrests and lowering the jail population, according to a July analysis by The Appeal, her office continued to hold defendants without bail in roughly the same percentages as before the pandemic.
“They seem to still be asking the court to hold the overwhelming majority of defendants without bond,” Angela Burneko, a volunteer with Baltimore Courtwatch, a legal observer group, told The Appeal.
All of these prosecutors were elected on promises to radically change the criminal legal system in their charge. Their victories were possible only after years of tireless organizing and mobilizing from the movement to end mass incarceration, which created the political environment needed for such candidates to even have a chance at getting elected.
The movement turned to these county-level elections to achieve immediate impact. Prosecutors hold vast discretion at all stages of the criminal legal process. They can decline to prosecute altogether, and their bail recommendations hold great influence in determining whether someone is jailed or is free until trial.
To be clear, many of these “progressive” prosecutors have ushered in some critical and long-overdue reforms and made enemies in their local police unions and other defenders of the status quo. But we must stop lionizing them and treating them as the leaders of this movement. We cannot pretend that these individuals can transform the systems when their job is to prosecute and jail people, distributing punishment in a fundamentally unequal society.
Decades of politicized, racist rhetoric around crime has led to a fear among prosecutors of being labeled soft on crime, despite the fact that research has clearly shown that mass incarceration has made us less safe. District attorneys are too deeply entrenched in our criminal legal system to be able to lead us through the radical transformation that is so desperately needed.
We need to reduce our jail and prison populations by 80 percent for the United States to even look similar to other comparable nations. There were over 2.1 million people behind bars in the United States in 2018, costing as much as $182 billion a year. The reforms of progressive prosecutors amount to a rounding error so far.
We must refocus on shrinking and ending systems of mass incarceration and replacing them with models that truly keep us safe. And to achieve that, we must center the voices of the real heroes: those local organizers who have shown they have the power and will to transform our communities for the better.
In just a few months this summer, community-driven protests by Black Lives Matter and others across the country defined a path toward ending mass incarceration. In the hundreds of thousands, the foot soldiers of these movements took to the streets, demanding we fully invest in the things that can truly guarantee public safety: housing, health care, education, jobs and strong, empowered communities.
They showed us the way out of our nation’s devastating experiment of caging millions of people on false promises of security, and the strength of their numbers and the power of their message propelled them to center stage in our national political culture. And while no one expects mass incarceration to end immediately, organizers and Black-led community-based organizations continue to take concrete steps in reimagining public safety that focuses on structures, not individuals.
These voices and these goals are the future of our movement. They demand real transformation that achieves real justice. And just as critically, they are demanding a shift in power. The question isn’t only what decisions are made but also who makes them. As long as power, and voice, remains with prosecutors, this demand for justice cannot truly be fulfilled.
Malik Neal is the executive director of the Philadelphia Bail Fund, a nonprofit organization that posts bail for people in the city who are indigent.
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