A Pivotal Moment in the Movement for Pretrial Justice


By Cherise Fanno Burdeen

The past few years have brought stunning successes in the movement to improve pretrial justice in America. We have seen, among other things, two state constitutional amendments allowing for the movement away from money bond; a growing body of litigation that has culminated most recently in a federal district judge calling bail practices in Harris County, TX, (Houston) a violation of the Constitution; the former Attorney General of the United States weighing in on a Maryland court rule; 45 states passing legislation to improve their systems; and 30 jurisdictions (including several states) implementing state-of-the-art pretrial risk assessment. 

This eloquent op-ed from a new (to me) voice from Michigan perfectly illustrates the amazing momentum we are now experiencing.

And yet, our opponents are are not backing down. To the contrary. Reading the same reports, news, and opinions, they draw the same conclusion as we do: Issues of fairness, safety, and cost make the overhaul of the money bond system inevitable. Like us, they know that time is on our side. And that means their only hope is to stop us. Not delay us. Not limit our success. But stop us. Now.

As Jeffrey Clayton, of the American Bail Coalition, told a reporter from the Crime Report, 2017 is “a ‘make or break’ year for cash bail.”

The key question for the movement now, however, is not, “How do we ensure that we ‘break’ the for-profit bail bond industry?” We know states without them still struggle. It’s “How do we break the grip of money on pretrial justice?”

Some people would rather not make ending money bond a leading issue. They would prefer, instead, to focus on shifting to unsecured bonds, on eliminating bonding-for-profit, or on people’s ability to pay. Others think that anything less than ending money bond will get perverted by the system.

Systems should be able to employ policies that improve the conditions we are currently fighting against. But unsecured bond, eliminating for-profit bail bonding, and instituting ability to pay are not a substitute for eliminating money bond. They still create two systems of justice: one for those with means and one for those without—especially if those able to post bond immediately can do so before other conditions of release are assigned. In most places, wouldn’t poor and working class people be subjected to “supervision conditions” that those with money could avoid? Wouldn’t the requirement to pay on an unsecured bond for a non-willful failure to appear simply replicate the money-for-liberty dilemma of secured bond requirements—just a bit downstream in the process for those unable to pay?

But no matter the outcome of technical experts and advocates coming together to work through these issues, crucial legal, political, and social decisions are being made. The question before us is how to stay focused on our ultimate goals of ending unnecessary pretrial detention while ensuring public safety and the integrity of the court process?

Who would have guessed that at this critical moment one of America’s premier art collectors would step forward and, in a stunning development, sell a piece of her storied collection—a 1962 painting by Roy Lichtenstein—to establish the Art for Justice Fund focused on ending mass incarceration? And that she would encourage her fellow collectors to do the same?

Ms. Gund’s exemplary philanthropy is yet another piece of evidence that criminal justice reform—including reform of our nation’s pretrial justice system—is an idea whose time has come.  

Time and justice are on our side. But there is still so much to do. Because the special interests will stop at nothing to protect the status quo, those of us on the side of justice must persevere, together, as never before.  

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