Kyle Rittenhouse Bought His Freedom. Kalief Browder Could Not.
The Rittenhouse case raises particularly pointed questions about what we are really talking about when we talk about bail.
This commentary is part of The Appeal’s collection of opinion and analysis.
Somewhere in America, right now, as you read this, a person—likely a young Black or brown man—is sitting in a jail cell, terrified he’s going to die because he can’t afford a few hundred dollars in bail. There have been tens of thousands of new COVID-19 cases reported each week in America’s jails, and those are just the reported cases—actual numbers may be much higher.
He may have asthma or high blood pressure, he may be diabetic or have a disability, and if he’s one of the millions of people who cycle through America’s jails over 10 million times annually, he is sitting in a world where he cannot get more than three feet away from another person. He may be sharing a bathroom with 40 other men. He may have no access to outside air, masks, running water, sanitizer and cleaning supplies, or even medical attention. He may not even be 18 years old. He is frightened for his life. He is frightened he will die in a cage over a few hundred dollars in bail.
Elsewhere in America, Kyle Rittenhouse, 17, is home. Accused of killing two men and wounding a third during protests against police violence, Kyle’s $2 million bond was paid by a group of supporters who raised the money online. Bail, you see, isn’t about what you did or whether you’re dangerous. Bail is about whether you can find the money to buy your freedom back from the state.
As I write this, nearly 400,000 people cannot find that money. And for them and their children, partners, parents, colleagues and neighbors, the Rittenhouse case raises particularly pointed questions about what we are really talking about when we talk about bail. After all, in a world where an accused killer can pay his way out of jail but a father sits behind bars for picking up his kids during a family emergency, we’ve forfeited the right to argue that these releases are somehow about public safety or the severity of charges.
In Missouri’s First Congressional District, which I am honored to represent starting in January, Black and brown people’s lives are at risk simply because they cannot buy back their freedom. In St. Louis City, Black people are held in pretrial detention three times as often as white people. We are living in poverty. Too often Black and brown people are detained indefinitely for minor offenses like traffic violations, trespassing, and drug possession—conduct that is much less frightening than the charges that stand against Kyle Rittenhouse. And statistically, we are far likelier to die if we catch the virus than he would be.
The time has come to stop pretending that pretrial detention is about public safety. Even before the pandemic, a few days in jail would cost a person their entire life: lost jobs, disrupted education or mental health treatment, fractured families, and an increased risk of homelessness are just a few of the likely consequences of pretrial detention. When you factor in the significantly heightened risk of COVID-19 death to the list of consequences, it becomes clear: The safety of many more people is put at risk by detention than release.
The hard truth in making smart choices about public safety is that it’s an area where people are prone to mistake emotion for evidence. The evidence shows that releasing more people pretrial generally poses zero risk to public safety. The evidence shows that sending text messages is a proven and more cost-effective method than cash bail in getting people to come back to court. The evidence shows that the ease with which we toss people into prison destabilizes families and destroys the economic mobility of entire communities. When we let our government make policy choices based on fear instead of reason, we get remarkably cruel and horrific consequences.
Willie Horton arguments fail when you realize that the number of people at risk of dying in a COVID-19-ravaged carceral facility is much higher than the number of people at risk of experiencing violent crime. The math is simple: Jails are now hotbeds of COVID transmission, and every day spent in jail is a risk to the health and life of everyone inside, including those who work there. When you fold how release benefits family unity, education, mental health, housing stability, and the economy of an impacted community, it becomes clear that the problem isn’t Kyle Rittenhouse’s fundraiser. The problem is that we don’t treat everyone like Kyle Rittenhouse.
Kalief Browder spent three years in jail, most of them in solitary confinement, for allegedly stealing a backpack and because he couldn’t afford his freedom. At 16 years old, he was wrongfully incarcerated for a crime he did not commit. A system that locks innocent children and adults in cages is not just or smart—it’s cruel. When he was released, Kalief Browder tragically died by suicide. In stark comparison, Kyle Rittenhouse has been heralded a hero.
This is why we continue to fight. When our freedom and justice are at stake, we cannot be silent. Elected leaders must have the courage to step past the fearmongering and create smarter, stronger, and more humane systems to spur change. The most important thing to keep our communities safe isn’t the local jail. It’s local jobs, housing, schools, and healthcare. Guaranteeing these building blocks of stability does much more to keep our community safe than needless, perpetual detention.
Although Congress does not have direct control over America’s thousands of jails, we do have control over funding that, if used to incentivize states and counties, could transform our criminal legal system. The first step is straightforward: We must invest in people and communities by funding affordable housing and child care, better schools, job opportunities, and healthcare.
We must reward jurisdictions that end cash bail and be mindful that we should not trade one broken system for others such as risk assessment tools and electronic monitoring that are algorithmically biased, privatized, and equally cruel. By making these investments, we can exchange old cages for stronger communities. We can increase both freedom and prosperity for everyday people, instead of reserving these fundamental rights as privileges for the few.
In Congress, I plan to sit on the House Judiciary Committee and craft policies in partnership with directly affected communities. This is the moment. This is our work to complete, our assignment unto liberation. This fight is in our hands. Standing together, it’s essential that we build a more just and equitable world that centers our voices and recognizes that freedom should never have a price.
Cori Bush is the incoming United States Representative for Missouri’s First Congressional District.