The Black Codes of Bail
The systems used to dispossess, oppress and control Black communities did not end with slavery.
The Black Codes of Bail are policies and practices associated with pretrial detention that trap people in the criminal legal system, exploit them economically, condemn them to debt, attempt to control their movement and interaction with family and loved ones, or make them vulnerable to further criminalization.
Much like the Black Codes passed in the aftermath of the Civil War, which were restrictive laws designed to limit the freedom of Black people and to ensure their continued economic exploitation and social degradation, Black Codes of Bail limit the freedom of Black communities and make them vulnerable to state control and exploitation.
Following the Civil-War political leaders throughout the country enacted laws intended to maintain white power and to continue the economic exploitation and social control of Black communities. The Black Codes, as these laws came to be known, rendered the promise of freedom and liberation obsolete and resulted in the incarceration of millions of Black people, changing the hue of prison populations from white to Black almost overnight and shifting the use of the carceral system to one aimed at racially based social control. Black Codes instilled fear and constrained the ability of Black people to create prosperous and safe futures for themselves and their families. Politicians and white businesses created these laws to continue the exploitation and control of Black people. Although many Black Codes were legally repealed, they have been reincarnated in the contemporary criminal legal system including in pretrial practices and policies.
Over the last three years the National Bail Out Collective has bailed out over 300 people. We have navigated the bowels of the criminal legal system. We have seen firsthand how the current system recycles the tactics, traditions and aims of chattel slavery, convict leasing and Jim Crow. Just like the original Black Codes, current policies and practices control, exploit, and destabilize Black people trapped in the pretrial system. We are calling these policies and practices the “Black Codes of Bail” because we want to make visible the similarities between our current system and racial exploitation and oppression of the past.
Read More Background about the Black Codes of Bail
The Black Codes of the Post-Civil-War Era attacked Black people’s civil liberties, curtailed their economic prospects, and controlled their movement and social lives.
Black Codes also constructed almost insurmountable laws that kept Black people indebted to white landowners, such as a Mississippi law that required Black people to provide evidence of employment for the coming year every January. If laborers left their jobs before the end of their contracts, they would be forced to forfeit their earlier wages, and would be subject to arrest. In many states Black Codes rendered Black people subject to arrest if they gathered in public spaces. In Louisiana, Black Codes made it illegal for any Black person to be drunk. In Maryland, Black Codes allowed courts to take children of “destitute or unfit” Black people and place them in unpaid “apprenticeships” (also known as endentured servitude or slavery). Black Codes enforced curfew and vagrancy laws that restricted Black people’s freedom of movement and freedom of association.
Even as states across the country enact reforms to the pretrial system there are practices and policies that continue the work of the Black Codes.
Today jurisdictions continue to enforce policies that tear apart Black families, justify the removal of children from Black homes, and criminalize Black communities. Exorbitant fines, fees, and bail amounts force a disproprtionate number of Black defendants to make an often impossible choice between debt or incarceration, placing a high economic toll on individuals and their families, in a replication of the same systems of confinement that Black people have endured since slavery.
Today’s Black Codes of Bail enforce curfews on Black people, and threaten incarceration for people who associate with family members or friends who have been targeted by the criminal legal system.
Black Codes of Bail dictate what clothing people can wear when posting bail, creating additional barriers to post bail and free our loved ones. Black Codes of Bail monitor and restrict people’s movement through electronic monitoring systems, such as GPS ankle shackles, which create mountains of debt for defendants who must pay for the use of the technology itself.
The struggle to end pretrial detention and money bail is a continuation of the abolitionist fight to end slavery and the exploitation and control of Black bodies and communities. The National Bail Out Collective started the bail out actions, inspired by Mary Hooks of Southerners on New Ground, because we saw it as a mandate from our ancestors to get our people free by any means necessary, until we succeed in radically changing the systems, policies, and practices that continue to cage and exploit us. We believe that part of that fight must be to end these restrictive and often cruel practices.
A Closer Look at Black Codes of Bail
These are just a few examples of the hundreds of policies and practices that continue to criminalize, exploit, and control our people. We hope you will keep fighting with us until our people are truly and completely free- not just from cages but also from state control, monitoring and exploitation.
#1: Unreasonable Curfew Requirements
Across the country some defendants who are able to post bail are given a curfew as a part of the requirements of their release; compliance with the curfew is determined by police officers who will randomly, without notice, show up to their place of residence within the curfew period to see if they are home or by surveillance such as electronic monitoring. Many defendants are either given a 6pm-6am curfew or a 24-hour curfew. For defendants who do not comply, they risk the revocation of their bonds or heightened curfew requirements which often include supervision by a GPS electronic monitor– equipment that is both invasive and financially burdensome, as defendants are required to pay for its use. In many states, including in Illinois, time spent on home detention by way of a curfew does not count towards time served.
Like other onerous pretrial release conditions, curfews have an extremely detrimental impact on defendants and their loved ones. For many individuals who held jobs prior to their arrest that required night shifts or included shifts with hours that overlap with their curfews, this condition of bond can cause them to lose their jobs or be forced to work fewer hours, which in turn means less money to support them and their loved ones.
Curfews can also strain social ties and keep defendants away from family, friends, or partners that live outside of their immediate neighborhoods. A case study from the Chicago Community Bond Fund described a defendant who missed out on her sister’s bridal shower. The inability to engage and attend milestone events or socially beneficial engagements is particularly common given that some conditions of bond include 24 hour curfews on weekends.
Illinois’ pretrial curfew requirements almost directly mirror the Black Codes of the late 19th and early 20th century that required Black people in a number of counties across the country to be off of the streets or disband from any public outside groups before sunset.
#2: Loss of Public Defender
In Harris County, Texas you can lose your public defender if someone posts bail on your behalf. The Supreme Court has guaranteed that defendants in criminal proceedings who are unable to afford an attorney will be appointed a lawyer because they recognize how fundamental representation is to the outcome of criminal cases. Without a lawyer defendants have very little or no chance of having their side heard and likely will be found guilty or forced to plead guilty.
In Harris County some judges automatically assume that those accused of crimes can afford an attorney if bail is posted, even if the person can prove that bail was posted by a third party or that they are unable to afford an attorney in addition to paying bail. The result of this policy is that people have to choose between sitting in a cage waiting sometimes years for a trial or posting bail and having no lawyer represent them at trial. Like many of the original Black Codes, this policy makes criminal trials a farce- where defendants do not have any representation and the court is complicit in holding people hostage.
#3: Two Year Waiting Periods
In Georgia prosecutors can wait up to two years to decide if they want to pursue misdemeanor charges against someone, meaning that people are trapped in a state created purgatory waiting to see if prosecutors will go forward with their cases. Throughout Georgia, and specifically in Fulton County, people are forced to put their lives on hold, abide by stringent (and sometimes costly) pre-trial requirements and endure the emotional stress of being under the control and whims of the court system. If people are not bailed out they can spend this time locked in a cage.
Considering that in our experience a majority of misdemeanor cases are dismissed once a court date is set, these two year waiting periods are an abuse of power that result in unnecessary warrants, economic hardship and mental anguish. Many times people face warrants for their arrest because they move and do not receive court notices so are unaware of their court dates.
The long waiting period also allows the court to place people under stringent pre-trial requirements, such as electronic monitoring, drug tests, curfew requirements or limitations on their ability to socialize with their family and friends. These pre-trial requirements also result in people being criminalized and if they are picked up for any other offense often bond is denied or more expensive because of their pending case.
Much like the original Black Codes these types of waiting periods expose people to extreme emotional stress and leave them vulnerable to criminalization.
#4: Forced Payment for Electronic Monitoring
In Colorado and Georgia, people released on bail have to pay for their own electronic monitoring, even if the charges are dismissed.
Home detention, with or without electronic monitoring, is presented as an option for some people facing misdemeanor or certain felony charges. Under the terms of home detention, a person is functionally incarcerated within their residence, though they may obtain prior approval for narrowly delineated obligations, such as work or school. Leaving their residence without express prior approval, or they will be subject to resentencing, and possibly incarceration.
In Colorado, use of a pretrial risk assessment to determine pretrial detention may result in a person being placed on electronic monitoring before trial. In Colorado, as in many states, fees may be determined by private companies that the county contracts with. The criminal code section that defines the fee structure for monitoring does not offer guidance or limits on how much counties may charge defendants for the cost of monitoring; in Denver, the cost of an ankle monitor was up to $11 per day, for an average wait of 90 days before trial. A 2018 lawsuit brought by the ACLU prohibits Denver county from charging people for pretrial electronic monitoring.
In Georgia, a person may be placed on “home arrest” either pretrial or post conviction. In either circumstance, if the person under home arrest strays from the demarcated limits of the arrest (usually confined to their place of residence, work, school, and transit to and from work or school), they may be found guilty of escape.
Electronic monitoring should be seen as another form of confinement, rather than an alternative. Devices need to be regularly charged, can be faulty, and are expensive. Counties that employ private companies to supply electronic monitoring devices may also default to allowing companies to determine the price and logistics of monitors; in other words, without proactive legislation to protect the rights, interests, and autonomy of people wearing monitors, families and communities will pay a high price for limited connectivity. As with the original Black Codes, laws that mandate defendants to pay in order to be electronically surveilled enact increased control of Black bodies and white profiteering under the guise of increased autonomy.
#5: Bail Forces People to Plea Guilty
Across the country, most people accused of crimes never have their day in court. Before any hearing of facts or presentation of evidence an overwhelming majority of people plead guilty. In state courts nearly 94% of people plead guilty to felony charges and the numbers are even higher for misdemeanor charges. This is not because all these people are guilty. People plead guilty to crimes they may not have committed to avoid long pre-trial jailing and the threat of harsh sentences.The use of money bail is one of the primary tools used to coerce people to plead guilty. People held pretrial are 14% more likely to be found guilty and nearly 11% more likely to plea guilty.
The consequences for pleading guilty are daunting. People who plead guilty are forever marked with a criminal record, which makes it difficult to sustain employment, makes them inelligable for some professional licenses, may rob them of the right to vote and exposes them to discrimination. Guilty pleas can also result in people losing their homes and their children and nearly always result in fees and fines. Furthermore, once someone has a criminal record they are exposed to tougher charges and harsher punishment if they are ever arrested again. For the criminal legal system, which arrests and charges over 10 million people a year, guilty pleas make it possible for the system to promiscuously charge and cage people with little evidence. Like all things criminal justice related, the plea system disproportionately impacts Black people. A number of studies show that Black defendants are offered more harsh pleas than similarly situated white defendants.
As Supreme Court Justice Kenedy noted in a 2012 decision plea bargaining is a form of “horse trading [between prosecutors and defense counsel] that determines who goes to jail and for how long.” This system is aided by the holding of people pre-trial. For those who cannot afford bail they are forced with the choice of pleading guilty to a crime they may not have committed or sitting in a cage, sometimes for years, waiting for the court to hear their case. Like the Black Codes of the Post-Civil War Era the use of plea bargaining forces huge swaths of the Black community into the criminal legal system without evidence or due process. Plea baraganing shepereds millions of Black people into the loophole to slavery provided by the 13th amendment by branding them with criminal convictions.