Connecticut nearer the presumption of innocence, but not there yet

On June 6, the Connecticut State Legislature passed H.B. No. 7044, “An Act Concerning Pretrial Justice Reform,” which will limit the number of legally innocent people who are held in jail because they cannot pay bail. By prohibiting money bail in most misdemeanor cases, this bill will save lives. Hundreds of defendants who would have otherwise been incarcerated due to poverty alone can now defend themselves from a position of freedom without pleading guilty just to get out of jail. This is a critical step towards restoring the presumption of innocence in our court system.

As organizers with the Connecticut Bail Fund, we see the human costs of the bail system every day. Since November, our organization has paid bail at no charge for over 30 people, each of whom would have otherwise remained in jail for months until, almost certainly, pleading guilty. Due to our intervention, these men, women, and children can fight their cases without losing their homes, jobs, income, and family support networks.

Under this new bill, many of the people for whom we have paid bail would not have been incarcerated in the first place. The importance cannot be understated — as we know from Kalief Browder, Michael Sabbie, Sandra Bland, Alexandra Lowe, and many more, pretrial incarceration is frequently fatal.

At the same time, this victory should not be overstated. By limiting the prohibition on bail to misdemeanors, the bill implicitly endorses the presumption of guilt for felonies. Over the past two decades, people charged with felonies have been increasingly required to pay bail for their release—growing from 37 percent in 1990 to 61 percent in 2009. Of the 3,200 people currently in Connecticut pretrial detention, only 388 stand to be affected by the bill. And even these people remain vulnerable to wealth-based incarceration if a judge determines they are “dangerous” or a “flight risk”—determinations that systematically discriminate against poor people, people of color, and people with mental illness. Comprehensive bail reform must eliminate wealth-based jailing in all cases—not just the politically convenient.

Nor does this bill recognize that the bail system harms those it releases, in addition to those it incarcerates. Annually, bail payments amount to a $2 billion transfer of wealth from criminal defendants —most of whom live in poverty— to the bail bonds industry. Malloy’s initial proposal would have alleviated this tax on the poor. The original bill included a provision allowing defendants to post 10 percent of their bail directly to the court, then recoup that deposit after their case ends. But the bail bonds industry, which profits by extracting non-refundable fees from families in crisis, successfully lobbied against this provision.

Why should the industry that thrives on the mass detention of legally innocent people have a say on bail reform? The industry’s lobbyists represent nothing but their bottom line.

Further, the new bill authorizes the bail industry to help run a state-funded “study” exploring the creation of an “assistance program” for indigent defendants in jail. This proposal is ludicrous. We already know the solution to the inequities of the bail system: abolition.

Money bail, which predicates freedom on a defendant’s ability to pay, is not reformable. It must be eliminated. The bail industry, which has spent two decades lobbying in favor of modern debtor’s prisons, should not be given taxpayer money to tidy its own mess.

In closing, we emphasize that bail abolition is a small step in the longer, more difficult process of decriminalizing poverty. Almost everyone for whom the Connecticut Bail Fund has secured release —whether innocent or guilty— was arrested for a situation arising from homelessness, mental illness, and the daily violence of poverty. The millions of taxpayer dollars that this bill saves on pointless incarceration should be spent on reparations for the harms of mass incarceration. We will not have pretrial justice—or any justice at all—until we plug the school-to-prison pipeline, hold brutal police accountable, and end racial inequities in housing, employment, healthcare, and law enforcement.