The Constitution ensures a right to a speedy trial and guarantees the presumption of innocence, but it does not guarantee a right to pretrial freedom. People who are accused of crimes are either held in jail or released with conditions, most commonly by paying a bail bond — a security paid to courts that is forfeited if a person fails to show up to trial. People who obtain these securities from bail bondsmen sign agreements that allow them to be captured by bounty hunters, a practice made famous by television’s “Dog the Bounty Hunter.”
Movement organizers and legal advocates today recognize that the arrests of protesters and community members should not mean jail time. But the problem with bail runs deeper than the ability to raise money. While it is widely assumed that keeping people in jail helps public safety, in fact, it has long perpetuated racial and economic divides and placed people accused of crimes in dangerous jail conditions.
Bail emerged in tandem with the rise of the modern jail. In early America, there was little need for extended detention in advance of a trial. Within close-knit communities, trials could be held quickly, and it was easy to locate someone for trial. Bail was paid only if someone didn’t show up.
As cities and judicial systems grew, cities adopted the English common law tradition of prepaying bail because urban jails could not hold everyone accused and they did not trust strangers to appear. Those confined in jails faced poor conditions: Jails lacked toilets, suffered rampant bed bug infestations, had no uniforms or means of washing prisoners’ clothes and offered no health care of any kind. But not everyone endured such harmful, and potentially deadly, experiences. By the 1920s, social scientists understood that bail ensured that poor people who could not afford their freedom suffered in jail, while the rich went free.
Bail practices that facilitated the jailing of the poor in such dangerous conditions have long drawn opposition from critics. During World War II, these critiques were rooted in anti-fascist appraisals of federal executive power. Caleb Foote, a law professor at the University of Pennsylvania, published a landmark study of bail practices in 1954. Foote had risen to prominence during World War II as a conscientious objector, organizer against Japanese American incarceration and advocate for prison abolition.
His study found that while ensuring the accused appeared in court was supposed to be the only purpose of bail, judges often made decisions based on other factors. They weighed the fear of whether the accused person might commit a crime while free and personal histories of bail jumping. Their decisions, therefore, resulted in inconsistent bail decisions and practices. Most egregiously, Foote found, “bail was often used for punishment purposes,” with judges letting “custom or intuition” serve as the central feature of bail decisions.
Foote’s one-man campaign to reform bail practices and to reduce unfair jailing succeeded in gaining the attention of journalists, philanthropists and lawyers across the nation who worked to change how bail decisions were made. In New York, the Manhattan Bail Project saw not only the possibility of using bond funds — using donated money to pay bail for people who could not afford it — to ensure release, but also to persuade judges to abandon use of bail altogether.
The movement against unjust jailing achieved even greater prominence as the civil rights movement adopted the “jail no bail” tactics in which they refused to pay bail after being arrested for protesting. As a “strategy of the last resort,” activists who could not afford bail and could not raise the needed money in bond funds used their incarceration to draw further attention to their political repression.
But this didn’t make jails any safer. Indeed, at the Democratic National Convention in 1964, Fannie Lou Hamer recounted being beaten while held in a Mississippi jail after her arrest for registering people to vote. Her account exposed how racial oppression made jails even more dangerous for African Americans and people of color.
The mobilizations around bail that occurred as part of and in tandem with the civil rights movement helped to inspire the Bail Reform Act of 1966, which extended pretrial services to people accused of federal crimes and aimed to reduce what President Lyndon B. Johnson called the “arbitrary cruelty” of the bail system. Across the nation, state legislators adopted similar reforms to bail practices through changes to state laws and constitutions.
With the expansion of federal law enforcement funding through Johnson’s War on Crime, community organizers found vital funding for the expansion of local bail reform projects in cities such as Chicago. That the War on Crime included funds for local anti-incarceration initiatives was not a contradiction. Like the Great Society, it included opportunities for community-based organizations to enact more radical visions.
In 1969, after the killing of Black Panther Party Chairman Fred Hampton by Chicago police and the FBI, the Alliance to End Repression formed to challenge police violence through a broad-based coalition of civil rights organizations, religious groups and liberal activists such as the League of Women Voters. Through its Cook County Special Bail Project, the Alliance to End Repression established a bond fund and coordinated a comprehensive pretrial interview program to help people accused of crimes demonstrate that they had the social capital to ensure that they showed up for court.
Federally funded bail programs folded with the collapse of the Law Enforcement Assistance Administration in the 1980s, however, and policymakers passed more punitive policies. The Bail Reform Act of 1984, for example, legitimized the widespread practice of “preventive detention.” Allowing judges to consider the potential for commission of crimes while accused people were free on bail in their bond decisions undermined the practice of conditional release. This contributed to the expansion of pretrial jailing in the late 20th century.
The legacy of mid-century bail reform became clear through the Black Lives Matter movement. Through public recognition of the harms of jailing, publicized prominently through the stories of the deaths of Kalief Browder and Sandra Bland, the bail abolition movement has gained attention in recent years as a necessary means of intervening where local courts had failed to protect vulnerable people.
Today, activists recognize that raising bond funds is not enough. Prosecutors and judges continue to set astronomical bail amounts, and movements to end bail in New Jersey and New York have faced pushback from legislators fearing a rise in crime. As part of the movement to abolish cash bail, bond funds have inspired thousands of donors across the country and may help Americans imagine new possibilities for freedom amid catastrophic state failure.
Note: This piece has been updated to reflect that Fred Hampton was killed in 1969, not 1968.