When it comes to criminal justice policy, raw, unadulterated fear is among the strongest tools in the anti-reform toolbox. Often racialized, unfounded, and cloaked in euphemisms about crime and public safety, the fearmongering playbook is simple but effective. It is the weapon of choice for law enforcement and their allies to thwart modest and transformative measures alike, especially those designed to shrink the carceral state and combat the racial injustice that defines our criminal legal system. Though history is replete with examples, the saga of bail reform in the U.S. is particularly instructive.
Nationally, more than half a million people who have not been convicted of any crime are trapped in jail because they cannot afford to pay for their freedom. Under a cash bail system, when a person is detained—and presumed innocent—a court determines an amount that person must pay to be released. Historically, the purpose of that cash bail payment is to ensure that person will return to court. But experience, confirmed by data, has long demonstrated how this system of wealth-based detention fills jails with a disproportionate share of Black and brown people who are unfairly saddled with bail amounts they cannot pay. Progressive reformers have fought to reduce jail populations for this reason, understanding cash bail as a betrayal of the presumption of innocence that devastates communities of color.
But wherever reform efforts gain momentum, they are met with reactionary headwinds, gusts from America’s racist past. It’s a familiar pattern. Backed by law enforcement, politicians, prosecutors and other long-time opponents of reform whip up fear about the impact of reform laws by relying on cherry-picked stories about people released following their arrest and a false narrative that bail reform laws unleash crime. This pattern of reform and fearmongering is just the latest example of the way modern lawmakers have weaponized the age-old false connection between race, fear, and criminality that has always animated crime and punishment in the U.S.
Fearmongering in Action
In Texas, where over the last two weeks lawmakers took steps to advance a backwards bail proposal, racial fearmongering is a tried and tested tactic. The Texas criminal justice system has been shaped by decades of racist policies that infused the myth of black criminality into public life. Black Texans today are grossly overrepresented in state jails, making up nearly 30 percent of the jail population despite comprising only 12 percent of the state population overall. In Harris County, Texas’s most populous, Black people accounted for 45 percent of bookings and over half of all nights spent in jail between 2015 and 2018 (only 19 percent of Harris County residents are Black). The overwhelming majority of those confined in Texas jails are people presumed innocent and awaiting trial, often unable to afford cash bail.
This systemic attack on due process also got the state into legal trouble. In 2017, a Federal judge struck down Harris County’s entire cash bail system for “violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention,” and ordered the immediate release of virtually all people accused of misdemeanors in the county. In line with the resulting settlement, for the next two years, county officials would stop requiring most people accused of misdemeanors to post cash bail.
In September 2020, independent monitors issued their first progress report of the court-ordered reforms in Harris County. They found that releasing those accused of misdemeanors without requiring cash bail did not result in a rise in arrests or reoffending, and further led to a decline in the gap between white and Black people who are released pre-trial, a key source of racial disparity. In other words, the vision of reform was supported by a body of evidence. One of the monitors, Duke University law professor Brandon Garret, noted how fears of a post-reform resurgence in crime were simply not borne out by the data.
This past March, another progress report yielded still more promise, with cashless bail shown to actually reduce the percentage of those arrested within a year of their original arrest. But by then, the fearmongering machine was already in high gear. In February, Governor Greg Abbott designated bail reform as an emergency legislative item. It wasn’t, however, the type that keeps poor people out of jail. Instead, Abbott prioritized passage of the Damon Allen Act, HB 20, named after a police officer who was allegedly shot and killed during a traffic stop by a man released on bond.
Abbott described HB 20 as “a set of proposals to reform the bail system in Texas to protect law enforcement and enhance public safety,” with no mention of the thousands of people languishing in Texas jails simply for not having enough money. More to the point, by galvanizing a counter-reform effort in Allen’s name, Abbott was attempting to delegitimize the progressive reform movement by distorting both the nature and scale of the problem. “Violating equal protection rights” was no longer the system’s central injustice. By turning Allen’s alleged killer, a Black man, into the emblem of fear, he was also conjuring the dark forces of history to resurrect Reconstruction-era caricatures of the emancipated, which equated Black freedom with white vulnerability.
Republican legislators adopted the playbook as well, capitalizing on a nationwide spike in homicides—even though the Harris County reforms had only focused on misdemeanor cases. Senator Joan Huffman introduced Senate Bill 21, which proposes reinstating cash bail even for minor offenses, including low-level drug possession, citing the “appalling uptick in violent crimes by defendants out on multiple personal bonds.” HB 20 mandated the use of algorithmic risk assessment tools—which have been shown to be ineffective and racially biased—rather than cash bail. But last Monday, Huffman gutted the House measure and replaced it with identical text from her own, harsher bill. Nick Hudson, a strategist for ACLU of Texas, summarized the reform dilemma aptly: “Both bills are bad, so our hope is that we don’t get some sort of Frankenstein bill that just ratchets up incarceration and punishes people for being poor.”
The tactics were not much different in deep blue New York.
In April 2019, after decades of work by advocates, lawmakers, and people directly impacted by police, jails, and prisons, New York enacted long overdue reforms to the state’s pretrial system. Those reforms were aimed at the well-known injustice of unaffordable cash bail.
The New York law, which ended pretrial jailing and cash bail for 90 percent of all arrests statewide, marked a significant step forward in the fight for equal justice. To be clear, the law did not eliminate cash bail altogether. Instead, it left judges with the discretion to impose bail in so-called “violent” felonies and a smaller subset of crimes involving domestic violence, contempt, witness tampering, and sex offenses. Nevertheless, some estimated that proper implementation of the law would lead to a 40 percent reduction in the state’s overall jail population, sparing thousands the social, psychological, and economic pain of pretrial incarceration. Judicial decision-making shifted in anticipation of the law going into effect in January 2020, leading to a 30 percent year-on-year decrease in the state’s jail population.
Yet despite the law’s promise, less than two months after it went into effect, New York politicians announced plans to scale back bail reform. The state legislature rolled back the nascent law in April 2020, expanding the number of crimes eligible for cash bail and broadening judicial discretion to jail people who are entitled to a presumption of innocence in the face of criminal allegations. Further reductions to the jail population in response to the COVID-19 pandemic were offset by a dramatic uptick in pretrial detention, attributable to the reform of the reform.
Fearmongering as Heritage
What we have seen in New York, Texas, and other parts of the country is unsurprising given the false yet historically potent connection between race, fear, and criminality in the U.S. That demonstrably false connection is so well-established that opponents of progressive change to the criminal legal system need not even mention race to foster hostility and trigger regressive policies. The phenomenon has deep roots, grounded firmly in the toxic soil of American history. A cursory examination of that history reveals the ways in which one of our nation’s original sins—the enslavement of Black people—was sustained by lawful punishments. Fear that the racial order would be undone animated the brutality of those punishments, including lynchings that defined a reign of white supremacist terror.
That fear remained ingrained in the regimes that followed. As slavery evolved into Jim Crow segregation, the criminal legal system evolved with it. The laws that governed slavery were supplanted by laws that criminalized the behavior of newly emancipated and already free Black people alike, perpetuating the criminal system as a tool of control in service of a racialized caste system that has haunted America since its inception. As crime data became more prevalent in the late 19th century, the overrepresentation of Black people in the criminal legal system—premised on the racism of the previous two centuries—was advanced as emblematic of Black life and fueled the racist myth that Black people are inherently criminal.
The consistent use of the criminal system as a tool of racial control—and the labeling of Black people as criminals in service of that effort—is one of the central organs of American social policy. The result is a history that has so bonded notions of race, fear, and criminality that reference to one naturally implicates the other two. In the simplest terms, Black people are criminals. Criminals are to be feared. And the cycle is completed when policymakers take reflexive turns to criminal policy to assuage our fears.
And what an effective cycle it is. Fear is among the most powerful motivators of all, driving behavior and distorting our perception of reality, fomenting wild myths and wholesale mistruths, especially when it comes to crime. It makes perfect sense then that when policymakers of any race talk about crime, and stoke fear, intentionally or not, they are pulling on the strands of racism woven into the fabric of America. Ultimately, those arguments mean that Black and Latino people end up worse off.
Examples abound. Richard Nixon’s racially coded law and order presidential campaign, George H.W. Bush’s use of Willie Horton to portray Michael Dukakis as soft on crime, Bill Clinton’s tough-on-crime campaign messaging, and Donald Trump’s embrace of law enforcement and harsh criminal and immigration system policies are the legacies of centuries-old attitudes rooted in white anxiety and fear. The debunked “superpredator” myth, which produced a wave of death in prison sentences for youth, is another.
Separating Facts from Fear
The pushback against bail reform in places like California, Texas, and New York is just the latest take on this old story. And just like those stories of the past, the bail reform pushback is littered with demonstrably false assertions designed to stoke fear and undermine reform. Among them are that bail reform produces more crime. Likewise, opponents working from the fearmongering playbook also claim that bail reform endangers public safety and is anti-police. They also consistently mischaracterize the purpose and effect of bail, arguing that it is supposed to keep so-called dangerous people in jail, or that people will not return to court unless they have to pay for their freedom.
Reality speaks volumes. America’s pretrial justice system—and its obsession with pretrial jailing—does more to undermine the safety and security of communities.
First, the detained pretrial population is massive—nearly half a million people are being held in jail, awaiting trial and presumed innocent. In the last four decades, the number of people jailed pretrial has grown by more than 400 percent. Those numbers matter because we know that a person who is jailed pretrial is more likely to be convicted of the instant offense, incarcerated, and arrested at a later point in life. Pretrial jailing and the prospects of being locked up pending the outcome of a criminal case is a key driver of guilty pleas, even for those who maintain their innocence. And the harms of pretrial incarceration are uniquely suited to driving people into the criminal legal system. Those harms include the loss of employment, the disruption of health care, the upending of educational opportunities, the destabilization of housing, and broken connections to families, loved ones, and communities. Pretrial detention routinely cuts the community ties that foster safety and stability. In short, pretrial detention is feeding mass incarceration and mass criminalization, perpetuating the devastation wrought by the criminal legal system on communities, especially Black and Latino communities. If anything causes more crime, the data makes clear that it is the destabilization and range of harmful consequences that flow from pretrial detention.
Second, data and experience with bail reforms in several states demonstrate that releasing people pretrial does not harm public safety, especially when public safety is measured through the lens of crime rates. Indeed, the extent to which policymakers and law enforcement knowingly spread false claims about the impact of pretrial release in service of fearmongering proves the point. Just this week we learned that in 2019, Chicago’s mayor, Lori Lightfoot, and then-police Superintendent Eddie Johnson repeatedly turned to the false claim that pretrial release decisions were driving up gun crime and endangering police and the public, despite data from the state’s attorney’s office to the contrary. Likewise, in 2020, claims by New York City Mayor Bill DeBlasio and NYPD Commissioner Dermot Shea that bail reform drove a spike in violent crime were flatly contradicted by the NYPD’s own data.
Finally, the fearmongering on bail reform is made that much worse by willful ignorance about the original purpose of bail, which is not to jail the so-called dangerous but to ensure that people return to court. That said, the cash bail system has no effect on court appearance rates. The Bail Project, a national bail fund that posts bail for those who cannot afford to do so and supports people through the pretrial process, has bailed out close to 12,000 people nationwide since 2018, with clients returning to nearly 90 percent of their court dates despite not having any financial obligation to the organization or the courts. In jurisdictions like Washington, D.C. and New Jersey, which overhauled their pretrial systems and virtually ended cash bail, residents likewise appeared at their trial dates 90 percent of the time, even as 95 percent of all people were released pretrial. In other words, people return to court at high levels regardless of whether they have been subjected to cash bail.
Ultimately, fear makes it all too easy to confuse fiction for fact. It is long past time that we break the cycle of fearmongering that far too often derails efforts to stop the harm that the criminal legal system visits on so many people. Only by breaking free of that fear can we end the scourge of wealth-based detention, the crisis of pretrial jailing in this country, and the racial injustice that flows from both.