In the United States, “innocent until proven guilty” remains an illusory promise. Racial bias determines bail decisions, and it doesn’t get any better when you replace racist judges with algorithm-driven Risk Assessment Tools – no matter how “objective” or “neutral” their advocates claim them to be.
The right-hand side of the Dorchester Municipal Courtroom in Boston, MA is partially cordoned off with a glass box that sits roughly diagonal to the judge’s Bench. Really, this glass box is a cage. In the chamber behind the cage are rows of long wooden benches which seats observers, family, law students, and those defendants who weren’t held on bail or those who could afford bail. In the cage wait the defendants who were held on bail they couldn’t pay. Even before they are deemed officially ‘guilty,’ poor folks – almost entirely black and brown people in this particular courtroom – are on display like prisoners. Those whose fate is the glass cage and not the wooden benches are shackled at the hands and feet. They are unshowered, having to make their court appearance wearing whatever clothes they were arrested in. And they are spoken to through the glass wall, straining to hear what the public defender is advising and what the judge is pronouncing.
I am here doing Court Watch for the Massachusetts Bail Fund (MBF), which organizes primarily to pay bail for people who can’t afford it, but also functions as a bit of a guerrilla research operation. MBF volunteers have been observing court hearings to see how a new initiative announced by District Attorney Marian Ryan is playing out in practice. In January of 2018, Ryan instructed prosecutors to stop requesting bail for “non-violent minor offenses,” which is vague and according to lawyer and founder of the MBF, Atara Rich-Shea, “not a legal category that can be predicted or enforced.” Although this policy may seem positive, given its ambiguity, it’s unlikely to have an impact on the number of people held in pre-trial detention. Additionally, the announcement was made within months of a House Bill that passed in Massachusetts which mandates the use of Risk Assessment Instruments (RAIs) when setting bail. So we come to court to make sense of how these “reforms” play out in actual hearings.
I am also here because growing up poor means I know the significance of even a $50 bail fee. I am here because as an activist I know how a mass arrest can drain a political organization’s funds. I am here because I spent two years in pretrial detention centers working with juvenile boys who were about to be tried as adults. And I am here because, as a close friend of someone who took his life in a jail cell after being detained for possession of marijuana, my grief coaxes me to interrogate. My grief coaxes me to fight.
In contrast to those in the cage, the wooden-bench defendants sit in open space. They have had the opportunity to shower and put on fresh clothes. They can approach the judge’s bench and shake their lawyer’s hand.
Of course, both the caged defendants and the uncaged defendants are, once entered into the criminal punishment system, never actually free. Their name in a police blotter, their wrists in chained cuffs, their face attached to a criminal tracking number –these things rob them of autonomy before any conviction is made. There is a reason, after all, many of us impacted by and working against policing and the courts refer to the “criminal punishment system,” rather than the euphemistic and illusory “justice system.”
But the difference between the experiences of those behind the cage and those in front of it is still a relevant one: primarily this difference is about money, but it also about who the court deems is and isn’t a ‘risk.’
The question of risk has been a guiding principle of the pre-trial stage of the criminal legal process since the mid-20th century, and was codified in distinct ways in both the Bail Reform Act of 1966 and the 1984 Federal Preventive Detention Act. The law in 1966 instructed judges to assess whether or not a defendant was a “flight risk” –that is, whether or not the defendant would try to flee the jurisdiction before their trial in order to avoid prosecution. The 1984 act supplemented more than overturned the 1966 act by additionally requiring judges to determine if the release of the arrested person would be a risk to “the safety of the community.” These decisions are often driven by racial bias, as a Princeton study concluded last fall, resulting in the detention, at disproportionate rates, of poor people of color.