The News Media and Bail
A case study in fear and science denial
Although a significant part of my life for the last seven years has been bringing civil rights cases to challenge the money bail system, I haven’t written about bail yet here. Recently, however, for about the 1,000th time, a judge privately told me that they agreed the money bail system was unfair and ineffective and that they didn’t want to separate people from their families just because they lacked cash. However, the judge said, every judge knows that if you release someone and they are one of the few people who commits a serious crime, “the media will blame me, and no judge wants to be in the media.” As a result, the judge said, it’s much more in the interest of judges to just require high cash bail that keeps people in jail, even though they are presumed innocent.
Implicit here is one of the most striking features of how the media covers the criminal system: every judge knows that, when a person dies or is sexually assaulted in jail because they lack cash to pay what a judge ordered, the media will never mention the judge’s name. But, if police feed the media a story about one of the rare instances of a released person committing a serious crime, the local news will devote sensational coverage. The same is true of the positive outcomes: If a judge releases 1,000 people and they keep their jobs so that their children don’t become homeless, no one will ever record or tell the public about those stories on the nightly news. Bad media curation of anecdotes leads to horrible policy.
The way that the bail system is covered in the media is therefore a story of profound biases in whose pain and misery is deemed newsworthy. But it’s also a lot more than that. It’s a story of political power, financial interests, science denial, and a culture of misplaced priorities. To see this, let’s examine how the media has covered “bail reform.”
A small but vocal group of cops, prosecutors, and bail insurance industry executives have embarked on a campaign of false information and fear-mongering about "bail reform." They have been successful in getting the news media to spread disinformation. Many news consumers now believe that charging amounts of cash for people to get out of jail makes society safer. This widespread belief is contrary to every available piece of scientific evidence. This post is about what happened, why it’s important, and how journalists can remedy it.
First, powerful people did this. The for-profit bail industry is a multi-billion dollar industry. It extracts its billions directly from families who are unable to afford the full amount of the cash amount required by a judge for a loved one’s release. This system of for-profit money bail still exists only in the United States and the Philippines.
Most people don’t understand the legal system. And most people who’s families haven’t been directly impacted by the legal system are shocked when they learn that the U.S. still cages people and separates children from parents based not on any determination of safety but based solely on whether a family has access to cash. As a result of this ignorance, the bail industry understands that it is very vulnerable to increased public awareness. More awareness threatens it with extinction because it is so useless and abhorrent.
Perhaps more importantly, cops, prosecutors, and judges hate bail reform. These bureaucrats depend on mass pretrial detention of low-level cases in order to coerce guilty pleas. To see why, take a look at this example: In our civil rights case in Houston, after an 8-day trial evaluating all of the existing empirical evidence before the Chief Judge of the federal court (a Republican), the federal court made important findings:
Of the 50,000 people arrested for misdemeanors in Harris County each year before our lawsuit, about 20,000 of them were detained, even though they were presumed innocent, solely because they couldn’t pay small amounts of cash (a few hundred dollars usually). These people pled guilty 84% of the time. The median time of detention before conviction? Just 3.2 days. (Side note, can you imagine what it feels like to be a mother whose child is trapped in a jail cell, and you literally cannot bring them home because you don’t have $500?)
However, people rich enough to afford a few hundred dollars to get out of jail were actually more likely than not never to be convicted. Those people didn’t have to plead guilty just to get out. And their cases lasted a median of 4 months while their lawyer worked on their behalf.
After we won the case, we ended the practice of jailing people in the most minor cases solely because of poverty. About 19,000 fewer people are detained every year in misdemeanors in downtown Houston alone, and there are about 24,000 fewer misdemeanor convictions. Now, the vast majority of misdemeanor cases never result in convictions because, if forced to prove them, police and prosecutors can’t.
This is one of the most important facts you will ever read if you want to understand the criminal punishment bureaucracy in the United States. I wrote more about it in this essay from my book Usual Cruelty. But what’s the upshot? The U.S. arrests so many people for so many low-level cases that it could never provide adequate defense, investigation, prosecutors, or jury trials for them all even though the Constitution requires it. The Constitution wasn’t written for a mass incarceration bureaucracy. If all people could exercise their constitutional rights to a full and fair trial and a zealous lawyer, the system would crumble because no society ever has tried to arrest and prosecute so many people per capita. This is true of every single county in the U.S.
This crushing volume of cases is what the for-profit bail industry was able to exploit. As mass incarceration rose in the 1990s, money bail became a vital, efficient way for police, prosecutors, and judges to force people to plead guilty quickly so that the assembly line dockets could churn without crumbling the system. Most of these people are released if they plead guilty, almost always with fines, fees, and costs that then became profitable debts that police, prosecutors, and courts collected. In this way, the system pays for and profits from its own injustice, and tens of millions of poor people have been trapped in a cycle for decades. It is a revolving door.
Even on its own terms, this system has nothing to do with “safety,” because most people released from jail quickly if they agree to plead guilty and accrue debt. (They are typically put on probation for additional fees, and have their driver’s license suspended for unpaid fees, incurring yet additional fees. 11 million Americans have their license suspended now solely because of court debts.) Police, prosecutors, and judges all understand that business as usual would end if people couldn’t be quickly jailed using cash bail. The machine on which all of their jobs, overtime, and consulting contracts depends would coming crashing to a halt. So too would the efficient ability of police to control, disperse, and managed large populations of unhoused people. This post isn’t an attempt to be as comprehensive as I am elsewhere on the way bail works, but these are a few of the real concerns of the punishment bureaucracy.
The federal court in Houston made one more critical finding based on all of the available evidence over many decades: Money bail does nothing to protect the community or encourage court appearance. It actually makes people more likely to commit crime in the future because short periods of detention destabilizes people’s lives: they lose their shelter, jobs, and kids. Their medication for physical and psychiatric care is disrupted, and they contract infectious diseases. They are often traumatized physically and sexually in jail. It costs taxpayers billions.
In the face of a system that is unconstitutional, unfair, and that makes everyone less safe, a few jurisdictions tried to make some modest reforms. The backlash against those reforms has been one of the most shameful episodes of modern news media.
There have been comprehensive studies of how the media spread misinformation in Texas and New York, but I have followed the same patterns across the country whenever talk of “bail reform” gains steam, including Houston, Wisconsin, Illinois, New Jersey, and California.
The media backlash includes a deluge of news coverage in which cops blame "reforms" for various crimes (most of the time, upon inspection, the release isn’t even the result of bail reform). Reporters then often cherry-pick specific crimes allegedly committed by people released from jail on bail, whip the public into a frenzy on the false premise that the “bail reforms” have caused or will cause specific crimes or increased crime generally. All of this is like what happened with Willie Horton. And all of this is like climate science denial.
Take New York as a case study. In 2019, the New York state legislature passed a modest bail reform package designed to reduce the number of people jailed pretrial solely on the basis of their poverty. People charged with misdemeanors and non-violent felonies would generally be released without having to pay cash. But money bail could still be used for more serious offenses. By eliminating the use of cash to secure detention in lower level cases, the state’s massive pretrial detention population would shrink 40%. The evidence shows that this would save $100,000,000s and reduce crime in the short, medium, and long term.
The media backlash was swift:
“Opponents of bail reform found a willing audience in press outlets across the state and used the media to wage a reckless campaign against the new laws. Many news outlets printed irresponsible articles that falsely portrayed bail reform as harming public safety, stirring up public fears. This onslaught of bad press began before the reforms were even implemented and only ramped up after bail reform took effect on January 1, 2020.”
Public support for bail reform, once popular after the death of Kalief Browder, dropped precipitously. In April 2020, just months after the reforms went into effect, New York rolled back some of the reforms, citing more crime – despite the lack of evidence tying the reduction of cash bail to crime at all.
A striking figure in that story was the NYPD Commissioner. He spent months relentlessly and falsely blaming “bail reform” for various crimes, and the media willingly printed his lies. Finally, at a hearing before the legislature, something rare happened: he publicly admitted that he was wrong and had no basis for the claims he had been spreading in the media. But what do we make of the media who willingly spread his false claims?
The stakes of ending cash bail and caging fewer human beings prior to trial are extremely high. And I want to be very clear about exactly why the fear-mongering reporting on bail reform is so deeply flawed.
First, there is no evidence whatsoever that little tweaks to bail laws, let alone any other reform to our criminal-legal system, could ever have significant effects on "crime," social problems, or violence and harm in our society. At most, the effect of these things would be extremely marginal. The root causes of crime are big things! Like poverty, inequality, guns, trauma, addiction, mental illness, unemployment, social unrest and alienation, toxic masculinity, etc.
One of the news media’s grand failures is that it allows self-interested punishment bureaucrats to push the myth that tiny changes to the policies of the punishment bureaucracy matter a lot for our safety. But when reporting on crime, almost no article you read in elite outlets mentions these root causes of violence and harm, or suggests to people that remedying those root structural causes should be treated as an urgent matter. Instead, they feature the opinions of cops, prosecutors, and judges debating various marginal bureaucratic “crime fighting” policies. This media malpractice allows powerful people to engage in an evidence-free debate with an absurd premise: we should tweak policies of state repression rather than, say, addressing inequality through poverty reduction, housing, health care, and treatment. All the while, whether it is Welfare Queens with crack babies or Willie Horton or Super Predators or Smash and Grabs from Walgreens, we keep having the same useless debates as a society, focusing on the wrong solutions to the wrong problems.
Second, we haven’t even really seen real reforms yet! The U.S. punishment bureaucracy looks VERY similar in 2022 to what it looked like in 2020. Although "bail reform" is being blamed for crime in broad strokes across the country, there has been almost no meaningful changes to pretrial systems. Even in places, like New York and California that implemented some bail reforms, the pretrial assembly line looks very similar in court rooms each day.
Third, the overwhelming evidence shows that money bail actually makes our communities less safe! Multiple rigorous studies have demonstrated that people who are kept in jail pretrial are more likely to commit future crimes than people who are released into the community. In fact, following Civil Rights Corps’ work to reduce misdemeanor pretrial detention in Houston, the data five years later shows that the decrease in the number of people jailed on bail resulted in less recidivism and fewer crimes.
A politician or a police officer blaming "bail reform" for more crime is lying to you. News organizations that repeat those lies and feature high volume stories about anecdotal local crimes are pushing us toward reactionary repression.
Unless we change these news practices, this could go down as one of the biggest historical scandals of modern media. Police surveillance and weaponry are so advanced, the growing fascist movement so organized, inequality so great, and democratic norms so eroded, that we face an unprecedented threat. We desperately need journalists to confront that threat with evidence, care, and intellectual rigor.