California Bail Reform Law: Cruel Hoax

In a 1963 speech in Detroit, Malcolm X told his black audience, “You’re still in prison. That’s what America means: prison.” More than 50 years later, mass incarceration has expanded the U.S. prison population to 2.3 million, with black people accounting for almost 40 percent of all inmates, largely victims of the bipartisan “war on drugs.” Nearly one-quarter of all those behind bars are there awaiting trial, generally locked up for being too poor to afford bail. With some half a million people in pretrial detention, a number of cities and states have adopted bail reform measures alongside efforts to reduce the financial costs of incarceration. The most recent is California’s Senate Bill 10 (SB 10), signed into law on August 28 by Democratic Party governor Jerry Brown. But far from ensuring that the “rich and poor alike are treated fairly”—Brown’s utterly cynical words—SB 10 substitutes one mechanism of race and class oppression for another.

Effective October of next year, SB 10 repeals the state’s existing bail laws. It calls for the release of those arrested for certain nonviolent misdemeanors within 12 hours of being booked, although it also allows judges to decide otherwise. Those not released under this provision will be given a “score” based on “risk assessment” software to determine who will remain locked up. Supposedly predicting who will not show up for trial or be a public danger, such algorithms are based on data from a criminal justice system that is racist to its core, with practices including stop and frisk, draconian mandatory minimum sentences and “three strikes” laws.

Ominously, SB 10 gives broad powers to courts to carve out exclusions from pretrial release and grants judges nearly unlimited discretion to order “preventive” detention. Those few who are released can be subjected to drug testing, monitoring, curfews and other probation-like conditions. After New Jersey eliminated cash bail in 2017, roughly 90 percent of those who had hearings were held in custody without any chance of release or were released under restricted conditions. Kentucky’s use of risk algorithms in conjunction with its 2011 bail reform worsened racial disparities with respect to pretrial detention. Throwing a cloak over SB 10’s foreseeable application, the final bill dropped a requirement for courts to report data on racial discrepancies.

San Francisco’s liberal Democratic administration had already introduced a form of “risk assessment” when in May 2017 Kenneth Humphrey, a black 63-year-old retired shipyard worker, was slapped with $350,000 bail (initially set at $600,000) on a charge of stealing five dollars and a bottle of cologne. In January, a state appeals court overruled the judge, declaring that “a defendant may not be imprisoned solely due to poverty.” The ruling signaled a victory for those who have long been fighting the state’s predatory bail system and thrust SB 10 back into the spotlight after an earlier version of the bill failed to pass. The bill flew only after last-minute amendments, which won it support from Brown and the state’s judges, who were assured the final say on who gets to rot behind bars and who gets released. Indicating just how wretched this “reform” is, groups like the American Civil Liberties Union and Human Rights Watch, which backed the original bill, oppose the new law, and San Francisco public defender Jeff Adachi called it “a complete abomination.”

This is what will come of trying to make fair a justice system whose very purpose is to mete out injustice to the workers and oppressed. The vast machinery of cops, courts and prisons at the core of the capitalist state exists to enforce the class rule of a tiny minority of filthy rich capitalists who extract profit from the labor of the working class. In America, the capitalist profit system was founded and has been maintained on the oppression of black people, who constitute a race-color caste and who in the majority are forcibly segregated at the bottom. The racist nature of the whole legal system is integral to its main function, which is to protect the rule of the exploiters over the exploited and oppressed masses.

The racial and class inequality intrinsic to the capitalist social order was captured in the ordeal of Kalief Browder, a black teenager from the Bronx who was arrested for allegedly stealing a backpack in 2010. Unable to make the $3,000 bail, Browder got stuck in New York’s notorious Rikers Island jail and refused to plead guilty when offered various plea deals. But because he was on probation, the judge then denied bail. Browder was brutally beaten and tortured, spending nearly 800 days in solitary confinement and three years detained without ever being convicted. In 2015, two years after prosecutors dropped the charges and he had been released, the 22-year-old committed suicide.

Desperate to get out of jail, innocent people in pretrial detention are pressured by prosecutors to plead guilty, and will then often find themselves unemployable and barred from public housing and other social benefits. The police and judges commonly extort black people through excessive fines and court fees, as exposed in Ferguson, Missouri, in the aftermath of the 2014 cop killing of Michael Brown. For many, a week or even a day in jail results in jobs, homes and families lost. Many of those who manage to scrape up bail are left in economic ruin, unable to afford debts to bondsmen who post bail in exchange for a 10 percent fee.

The prohibition of excessive bail relates to the presumption of innocence and was adopted as part of the Bill of Rights. But like other democratic rights under capitalism, constitutional freedoms are at best partial if not null for the majority of the population. In the eyes of the ruling class and their cops and judges, if you’re poor, black or other minority, the norm is guilty until proven innocent. Prohibitive bail and other forms of “preventive” detention have also long been used against leftists to suppress political opposition—including the jailing of 12 California Communist Party members under the anti-communist Smith Act in 1951 and the $1.5 million bail set for each of the three Occupy activists who were arrested for protesting U.S. imperialist depredations in 2012 in Chicago.

Amid the mass protests for black rights and upheavals against racist cop terror in the 1960s, Lyndon Johnson signed a federal Bail Reform Act supposedly to prevent people being jailed simply for being poor (while at the same time dispatching troops to put down the ghetto rebellions). As tumultuous social struggle ebbed, there was a racist backlash fueled by anti-drug and anti-crime hysteria. In 1979, a bigoted furor targeted black New York City judge Bruce Wright, who was vilified by cops, the tabloid press and Mayor Ed Koch for releasing black male suspects on their own recognizance.

The Bail Reform Act of 1984, mandating pretrial detention for those labeled a threat to “public safety,” was brought in by Republican president Ronald Reagan. Reagan’s attorney general Edwin Meese, known for denouncing the ACLU as a “criminals’ lobby,” threw out the presumption of innocence altogether by asserting: “You don’t have many criminal suspects who are innocent of a crime.” Those in Reagan and Meese’s crosshairs included leftists labeled as “terrorists,” black people targeted in the “war on drugs” and union officials railroaded under RICO racketeering laws.

The “war on drugs” was launched by Republicans, but it was a bipartisan campaign. Among its most vociferous supporters were black Democrats like Jesse Jackson and Al Sharpton, who made common cause with the police—the biggest purveyors of racist terror in the ghettos and barrios. The Democratic Party, which enforces a system of capitalist oppression no less than the Republicans, is equally responsible for the criminalization of entire generations of blacks and Latinos. The difference is that the Democrats administer capitalist “law and order” with a higher dose of hypocrisy.

It is under this pretense that Bernie Sanders introduced a bill that would strip federal anti-crime funding from states that fail to replace their money bail system with such risk-assessment “alternatives” as the racist nightmare just adopted in California. Not surprisingly, Sanders’s followers in the Democratic Socialists of America (DSA) lauded him for supposedly trying to end “modern day debtors’ prisons” (see 6 August New York Times op-ed by Meagan Day and Bhaskar Sunkara of Jacobin). The DSA, a component of the capitalist Democrats, covers for Sanders’s attempt to retool the mechanism of state terror and repression.

The growing outrage over a practice that condemns oppressed blacks and Latinos and poor whites to prison hellholes without ever being convicted of a crime and the desire for relief from the predatory bail system are more than justified. However, at bottom no kind of bail reform can fundamentally change the inherently violent capitalist state that dishes out abuse to the black and oppressed masses daily. Indeed, the young black men gunned down by cops in the streets never even make it to jail.

The aim of the multiracial working class must be to tear up root and branch the capitalist rulers’ state machinery of terror. Rallying in defense of all the oppressed, the working class must take power and expropriate the bloodsucking bourgeoisie, the only way to liberate the masses from all forms of class tyranny and oppression. To wage this fight requires a multiracial workers party committed to carrying out socialist revolution. Forging such a party is the purpose of the Spartacist League.