Here’s why cash bail is unjust and what’s being done about it in Fairfax County


Rabbi Jeffrey Saxe | Special to WJW

I  always find the Passover season to be an inspiring time of year because the powerful themes of liberation and freedom are brought into focus. The events of the last several years — a pandemic that laid bare our country’s inequities, mass protests for racial justice, existential threats to our democracy, international conflict — increasingly seem to be a fitting backdrop for this powerful holiday. But despite the myriad challenges facing our nation and world, this Passover I found myself reflecting on progress that my community has made locally that is consistent with the central lessons of the Exodus.

Cash bail is a pervasive driver of inequity in our criminal justice system. It can most simply be defined as the amount of money a court charges a defendant who is not deemed an immediate danger to the community to get out of jail in advance of a trial. Viewed otherwise, it attaches a price to individuals’ freedom: the rich — and more commonly white — get to await trial from home, while those who can’t afford bail — more likely Black and brown — await trial behind bars. Meanwhile, the collateral costs of incarceration mount quickly for those who can’t afford their ticket home. Jobs get lost. Custody of children gets drawn into question. Bills go unpaid.

And sometimes the collateral consequences are even more dire. This was unfortunately the case for Kalief Browder, who ended up in Rikers Island for three years — two in solitary confinement — after being accused of stealing a backpack at age 16. Browder tragically took his life after being released from jail and his family attributed the tragedy to the trauma he needlessly experienced behind bars. The evidence in his case was ultimately deemed too weak for the prosecution to even pursue the charges in court, but that determination was made too late for Kalief.

Unfortunately, Kalief is not alone. Across the country lives are ruined every day simply because individuals accused of crimes cannot afford bail, and those impacted are most commonly Black, brown and/or low-income.

I am thankful my community is proving that a different, more just path is possible thanks to the Fairfax County Commonwealth’s Attorney, Steve Descano, and team, including Deputy Commonwealth’s Attorney for Community Justice, Pia Miller. They are working to fulfill their promise to address racial disparities and mass incarceration. After taking office, they boldly stopped the practice of requesting cash bail. The impact was immediate.

Our county’s jail population has been halved, likely due in large part to the fact that folks are no longer being held simply because they can’t afford bail. Meanwhile, according to the county police’s own numbers, crime was down nearly 10 percent overall in 2021 compared to 2020. That means there were 3,187 fewer victims of crime in 2021. This development proves that we can fashion a more just legal system while keeping our community safe.

Descano and Miller shared with me that doing away with the practice of requesting cash bail has made it easier for the attorneys on their team to focus on the binary choice of whether an individual represents a safety risk to the community, in which case the team will request that they be detained pre-trial.

The bottom line is that shift in policy has led our community to rely less on pretrial incarceration, striking directly at one of the primary drivers of racial and socioeconomic inequity in the criminal justice system, and the community has only become more safe in the meantime.

So this Passover I am grateful to live and work in a community where, as our tradition demands, true justice is being pursued and the ideal of freedom core to the Exodus story is being centered. As the events of the last several years have made clear, we can and must build a more equitable legal system. Through their transformative bail policy, Descano and his team are modeling how such progress can be achieved.

Rabbi Jeffrey Saxe is rabbi of Temple Rodef Shalom in Falls Church.

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