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A Bailout for Democracy

· mass incarceration,cash bail,role of policing,PLAN,Nevada

Featured photo: Leslie Turner, lead organizer for PLAN Nevada, and her 2-year-old son, Nasir, sign in attendees for a listening forum sponsored by PLAN to address mass incarceration, Feb. 3, 2018. Activists and members of the community gathered at the Masjid As-Sabur mosque in Las Vegas to discuss their concerns.

Reporting & Photos: Jordan O'Brien

Last November’s election results brought the state closer to ending cash bail, a goal championed by progressive groups like the Progressive Leadership Alliance of Nevada. With control of the legislature and the governor’s mansion, and a super-majority in the state Assembly, Democrats in the next legislative session may have the political might to do so. During a September roundtable on criminal justice reform with former Attorney General Eric Holder, Governor-elect Steve Sisolak said he would make bail reform one of his goals. But cash bail proves an elusive topic that hardly generates attention in a state focused on reforming education and healthcare.

Attorney Robert Langford and Leslie Turner, lead organizer for PLAN Action’s Mass Liberation Project, explain the importance of this issue. If someone cannot pay the fines that stem from committing an offense, they are jailed, causing offenders to lose their jobs as additional fees and interest rates accrue. The arrangement criminalizes poverty and targets Communities of Color, forcing them into a vicious cycle that can be difficult to escape from. “As applied, it is not applied equally,” Langford said, speaking from his law office in Las Vegas. Cash bail is a “hidden tax” on the poor.

Despite its original intent to deter indefinite detentions, bail inadvertently created a debtors’ prison. Section 7 of the Nevada Constitution provides all defendants with the right to post bail, as long as they are not being charged with a capital offense. While the provision in Section 6 bans excessive bail and fines, Nevadans still face challenges bearing the costs without having to wait in jail for their court date.

“Now, we say, ‘sure, we’ll give you a bail, but it’s going to be way more than you can afford and you’re going to remain in custody,’” Langford said. It’s a “hidden punishment.”

(From left to right) Andre Dixon, Korey Tillman and Greg Murrell listen as members of the community discuss mass incarceration at a forum sponsored by Progressive Leadership Alliance of Nevada, Feb. 3, 2018. They gathered at Masjid As-Sabur mosque in Las Vegas to talk about their concerns.

Generally, the rich can afford to bail out of jail immediately. When they do so, their money returns to them at the end of the court proceedings, regardless of a conviction. The poor, however, must hire a bail bondsman to avoid pre-trial detention, resulting in a 15 percent premium that they never get back. Robert Langford’s campaign for district attorney made clear the appetite for criminal justice reform in Nevada. Following a national wave of progressive candidates seeking to reform the criminal justice system, the 28-year criminal defense attorney secured 44 percent of the vote against incumbent Steve Wolfson in Clark County’s primary election, a remarkable feat, given that he had only campaigned for 91 days. But since his defeat in June, Langford has continued to fight for bail reform.

Post-campaign, Langford organized the Nevada Criminal Justice Reform Alliance to address the issue. Composed of “pastors, politicians, public defenders and criminal defense attorneys,” he said, the group seeks to “end cash bail by requiring a judge to first find alternate methods of monitoring someone.”

Better ways to ensure a person shows up in court exist, Langford said. While signature bonds and electronic monitoring are options, consistent communication proves more effective. Daily text messages can achieve that in a cost-effective way, sparing taxpayers the costs of keeping people in jail.

Mass Liberation Project, a national cohort Turner helps lead in Nevada, seeks to transform the criminal justice system by liberating communities affected by bail. She described bail reform as a process of reprioritization. Assigning bail, she said, should be the court’s absolute last resort. “Even when it has to be used, it should be based on someone’s ability to pay, rather than arbitrary amounts that most people cannot afford,” she said.

Turner’s own experience with cash bail informs her. Arrested in 2016 for an outstanding traffic ticket, she could not pay the fees to post bail. Detained and kept away from her 4-month-old son, who had several health issues, she remained in jail for over a week. But that wasn’t the principal factor that drove her to pursue this work. “The fact that I have right now 36 people that I personally know–cousins, friends that I

went to high school with, people I grew up with, uncles that are behind bars right now, that is the driving force as to why I do this work” she said. Targeting the poor and Communities of Color is a function of the system.

The role of policing exacerbates the issue. According to a September report from the Crime and Justice Institute, Nevada’s prison population grew 919 percent from 1978 to 2016. Here, Black offenders were overrepresented compared to every other race. While African Americans comprised 8 percent of Nevada’s population in 2016, they composed 31 percent of the prison population in 2017. The Sentencing Project, a national collective that researches criminal justice data, found that the Black to white population ratio in Nevada’s prisons was 4.1:1 in 2014. The data suggests that Black communities are over-policed and are more likely to be thrust through the bail system.

“Cash bail doesn’t do what we think it should do,” Langford said. “It doesn’t keep anyone from committing a crime.” Risk assessment tools, which rely on algorithms to determine whether a person is likely to return to court, have been lauded as potential solvents to this issue. While Langford describes them as a great start to the conversation about bail reform, their judgments can be myopic. Moreover, they do not address the prevention of non-releases.

“My concern is that anytime you come up with a matrix that says yes or no, thumbs up or thumbs down, that’s a weak way to really effect justice,” he said. “There’s no matrix that leads to justice.” To Turner, said tools should invert their focus to emphasize a defendant’s needs, not their faults.

“Their algorithms are based off of data that are inherently racist,” she said. Prior arrests, stable housing and employment, determine “dangerousness,” which disproportionally impact Communities of Color. Turner said that these factors do not make a person less likely to appear in court. Moreover, incarceration fuels larger jails, which translates into more correction officers and resources. According to Langford, detaining someone at the Clark County Detention Center costs taxpayers $152 a day.

“How does that hurt our society?” Langford asked rhetorically. “Well aside from the fact that you and I have to pony up the money to pay for this person who otherwise should be out on the street; it hurts them because if they’ve got a job, they lose the job. If they’re a single mother or single father taking care of their kids, they lose custody of their kids,” he said.

In sum, it’s an expensive proposition. Continually keeping a portion of society oppressed and unfairly taxed, stifles their ability to contribute to the state’s economy. “When you explain that to people on both sides of the aisle, people are smart enough to recognize that this is about economics,” he said. “This is something that people have an appetite for.”

The shoe has passed to the Democrats who will occupy the legislature in 2019. While Assemblyman Ozzie Fumo, D-Las Vegas, plans to champion a bill that would require judges to look at non-monetary ways of enforcing bail, time will tell whether they have the political will to implement it.

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