The bail system originated even before the Magna Carta, and it was intended as a mechanism for actually protecting people from government abuse and overreach. Bail actually means “conditional release,” and it was a tool to prevent the King of England from detaining people, so that you could not be put in a dungeon before you were proven guilty beyond a reasonable doubt. It was like a surety that you or your family would promise to pay something if you didn’t show up to court. With the rise of commerce and the ability to travel more easily, there ended up being a problem of guaranteeing this surety. So a for-profit industry developed–what we know as the bail bond industry–to be your surety, for a price. Gradually, the system morphed into what we now think of as the bail system.

We actually came to focus on this issue through our debtors’ prison work—specifically our work in Ferguson, Missouri after the murder of Michael Brown and in Alabama, Mississippi, and Louisiana around our work with people being jailed because they couldn't pay tickets police gave them.

Those cases weren't about bail. They were about the injustice associated with being put in a cage just because you can't make a monetary payment. Those cases were about what we call “equal protection” and “due process”–the idea that it's fundamentally unfair to put someone in a jail cell for something they can't control like their poverty. And that it's fundamentally unjust and unequal to put someone in a cage when someone in the exact same situation wouldn't be in a cage just because they have money. Those are the two concepts that have really not been applied to the bail system in a generation, at least since the rise of mass incarceration.

When we started talking about challenging the money bail system under these theories, a lot of people were very skeptical. People working in a bureaucracy get used to doing what they do, and they couldn’t see how unfair and how devastating the policies they enforced are to the poor and to people of color and their families.

We were strong opponents of Proposition 25–and also strongly against SB10, which would have eliminated the money bail system. Like many reforms, the people who created them are the ones who are still in power and are trying to decide what replaces these systems of oppression, rather than eliminating them. They’re interested in maintaining high rates of pretrial human caging and control.

Right now, we've got a multibillion-dollar, for-profit money bail industry. These attempts at bail reform in California did what we're seeing all over the country with a lot of the bail bond companies, private prison companies, and prison telecom companies. These groups see the writing on the walls–that the money bail system is vulnerable. But they also know there's a tremendous amount of money to be made, and so what they're doing is shifting their business models. Instead of being the companies that sell you a bail bond, they want you to be released pretrial, and be the companies that sell you electronic monitoring devices–what Michelle Alexander calls “e-carceration.”

Kenneth himself is a very special person. He was told at every step of the way that he was too dangerous to be released, and that he was a symbol of all that was wrong with the bail reform movement.

On the other hand, we know from all of the evidence that almost everyone charged with crimes in this country is at an extremely low risk of committing a new crime while out on release. We also know that jailing people prior to trial makes people more likely to commit crime in the future because it destabilizes them and takes them away from their loved ones, their treatment for their mental illness or their addiction, their safe housing, and the participation in programs that can actually help them better their lives.

Once the state’s high court ruled in Kenneth’s favor, the trial court released him and he proved everyone wrong. It's been over three years. He's been thriving with his partner and living a life that's full of joy. He's also gotten involved in a lot of the activism around bail reform. He is a perfect example of why it's such a wrong-headed and reactionary assertion that because someone is accused of doing something serious, they should be thrown in a cage at enormous cost to themselves, taxpayers, and others in society.

I think that the uprisings in the wake of the murders of George Floyd and Breonna Taylor, and so many other human beings, have totally expanded people's consciousnesses and changed the idea of what's possible. It has fundamentally altered a whole new generation’s thinking about what the police are, what they are doing, and whose interests they are really serving.

Fundamental redesign of the legal system is long overdue. We have a system that for many decades has been using rhetoric about public safety to mask the fact that our society is incredibly unequal. People are incredibly unsafe for many reasons that our society is not addressing–whether it’s lead in children’s water, or the inability to access healthcare, or the lack of adequate access to mental health treatment and drug addiction treatment. These are very serious public health issues.

Yet those who lead our society have used this concept of crime and criminality–of police and prisons–to paper over their inability to confront those other issues. I think we’ve seen a tremendous opening in the last nine months or so to elevate these discussions, and I'm very excited to be a part of this work.