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Criminal Justice Advocate Calls U.S. Cash Bail System 'Flagrantly Unconstitutional'

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Tracy King
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In Wisconsin, residents can be held in jail for months before their trial if they can't afford to pay their set bail.

This February, Illinois became the first state to completely ban cash bail in the state’s criminal justice system. New Jersey and Washington D.C. have implemented reforms that only use cash bail in select situations, while New York and Alaska have moved towards banning cash bail but since rolled back their plans.

Critics of cash bail say that the system unfairly targets poor people as an individual’s ability to get out of jail before their trial becomes solely based on whether they can afford bail.

Alec Karakatsanis is the founder and executive director of the Civil Rights Corps, a nonprofit that fights against injustice in the criminal justice systems across the United States, including working to replace the cash bail system.

“[The United States is] the only country in the world other than the Philippines that has a private, for-profit commercial money bail industry where there are companies allowed to profit off the idea that our legal system determines who is in a jail cell and who is home with their families on the basis of who has access to cash,” he says.

Karakatsanis says he doesn’t just disagree with the practice of money bail but says that the practice defies the U.S. Constitution by allowing one person to be kept in a jail cell and set another person free just because one person can afford to pay bail.

"The way that money bail is used across the country is flagrantly unconstitutional, not only is it horrific policy and very costly in all the ways I describe but it's also illegal," he says.

While bail is supposed to work as an incentive to get defendants to show up to their court dates, Karakatsanis says the system can’t work if people can’t afford to pay in the beginning.

“That incentive only operates if you actually get out of jail and could lose that money if you don’t show up in court but for poor people, who can’t even put up that amount of money, they’re just solely being detained because they’re poor,” he says.

Gretchen Schuldt is the executive director of the Wisconsin Justice Initiative, which is hosting Karakatsanis as a speaker on Thursday, April 29 at noon for a virtual event called “Prosecutors, Judges, and Public Defenders: The Complicity of Lawyers in the Mass Human Caging Bureaucracy."

Schuldt says while Wisconsin has taken the step to ban commercial bail, there are still issues with the state’s current bail system. The pandemic slowing legal proceedings down and the lack of public defenders to represent those who can’t afford legal counsel can mean residents are forced to wait for months in jail if they can’t pay their bail.

Karakatsanis says reforms like ending commercial bail don’t do enough to focus on the real goal, which is to keep people who have not been convicted of a crime in their community and living their life.

“If you keep building jails, keep giving money to police, keep giving money to prosecutors, they’re going to do what they do — they’re going to arrest more people, they’re going to prosecute more people, they’re going to fill those jails. It’s a business, it’s an assembly line and so the only changes that will matter are changes that reduce the money and the power that we’re putting into the system,” he says.

But Schuldt says those reforms aren’t likely to come in Wisconsin’s current political landscape.

“To make a difference in Wisconsin, A, you’d have to stop treating this as a political game and realize they’re real people and real communities at stake and I think that’s totally forgotten in this state, in the halls of Madison,” she says.

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