Last week, Illinois became the first state to eliminate its cash bail system, and Virginia became the first Southern state to abolish the death penalty. These developments illustrate that many of the most impactful criminal justice reforms can and must be enacted by states, not by the federal government.
On any given day hundreds of thousands of Americans who have not been convicted of crimes remain locked up in jail simply because they are unable to afford bail. Poverty and affluence make a mockery of our system of justice.
This cash bail system has been a major driver of mass incarceration in recent decades. As the Prison Policy Initiative has pointed out, “While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years.” The group continued, “Detention of the legally innocent has been consistently driving jail growth.”
Specifically, as the ACLU has noted:
“Poorer Americans and people of color often can’t afford to come up with money for bail, leaving them stuck in jail awaiting trial, sometimes for months or years. Meanwhile, wealthy people accused of the same crime can buy their freedom and return home.”
When people spend months and years in jail, they can suffer emotional and psychological distress as they lose jobs and time with their children, spouses and families.
Furthermore, the cash bail system has a societal cost. A study by The Hamilton Project at the Brookings Institution as reported by The Trial Lawyer magazine found that “in 2018, the direct cost of bail to the U.S. economy was $15.26 billion” including cost of incarceration, lost output per prisoner and cost of bail. Mass incarceration driven by cash bail is destroying poor and minority lives and families. Those who are responsible for upholding this system profess to want to fight crime, but they do so by destroying communities.
Then there is the death penalty. Each state has the power to keep it or get rid of it. About half the states have already abolished it, as Virginia did this week, but the other half continues to cling to it.
The death penalty is overwhelming carried out on the state level. As Mariam Morshedi, the founder and executive director of Subscript Law, pointed out in 2019, “Since 1977, there have been 37 federal executions and 1,453 by the states.”
And there is a history of extreme racial bias in its application, with Black people convicted of victimizing white people being far more likely to be killed by the state.
As a 2020 report by the Death Penalty Information Center (DPIC) pointed out:
“In Alabama, Arkansas, Florida, Georgia, Louisiana, South Carolina, and Tennessee between 1945 and 1965, 823 African American men were convicted of rape, and 13% were sentenced to death. During the same time period, 442 white men were convicted of rape, and only 2% were sentenced to death. The same disparities were seen in executions. Between 1930 and 1972, 455 men were executed for rape across the U.S. Four hundred and five, or 89.1%, were African-American.”
The report continued: “The vast majority (443) of these executions occurred in former Confederate states. An examination of death sentencing for rape in Texas between 1924 and 1972 concluded that ‘when a Black offender was convicted of raping a white woman, he was virtually assured of a death sentence.’”
This also appeared to be the case in Virginia. As the DPIC found: “From 1900 until the U.S. Supreme Court declared the death penalty unconstitutional in 1977 for crimes in which no one was killed, Virginia executed 73 Black defendants for rape, attempted rape, or armed robbery that did not result in death, while no White defendants were executed for those crimes.”
The group also notes that, “In the modern era of capital punishment, Virginia has executed a higher percentage of its death-row prisoners than any other state.”
And none of this says anything of the shocking number of exonerations of people on death row, which suggests that many others who are also innocent but don’t have access to good lawyers are killed by the state.
The death penalty has disproportionately been used as a weapon against Black men — often under the guise of defending white women — and became a more sanctioned and more orderly form of lynching.
Not only is it barbaric, it is biased.
The social justice position on criminal justice isn’t only that the system is constructed in destructively punitive ways, but also that there is inherent racial inequality in the way laws are applied.
The true frontier of criminal justice equality is on the state level. States have the power to write their own criminal codes. Those codes are riddled with racial biases, often intentional. But too many have done too little to change those laws and right the wrongs.
If the criminal justice system is to move toward racial equality and liberation, this change will have to start with the states.