This op-ed was originally published by the Sarasota Herald-Tribune.

John Hodges supports himself on a limited income with his power washing business. He is also experiencing homelessness. But like thousands of others in Florida, Hodges is sitting in jail because he can’t afford his unconstitutionally set bail.

In August 2021, Hodges was arrested and charged with stealing a bicycle from a porch. Legally, he is innocent. We don’t know yet what actually happened – that is what a trial is for. In practice, however, Florida’s bail system has already taken Hodges’ freedom away.

Hodges’ bail was set at $5,500. He could afford $1,000. He proposed the court substitute the $5,500 requirement for this lower amount and add other conditions – pretrial supervision, alcohol and drug testing, and attendance at substance abuse meetings. These conditions would equally satisfy any concerns and facilitate his release. But the court denied Hodges' request and kept his bail at $5,500 without explanation or serious consideration of his proposal.

This is an unconstitutional practice.

Florida has high pretrial detention populations: currently there is a daily average of nearly 34,000 people sitting in Florida jails awaiting their day in court. This drives overcrowding in many county jails, and those who are eligible for release but are too poor to afford cash bail account for a significant amount of the jail population. More than 12,000 presumptively innocent people will be locked up tonight and kept away from their families because they cannot afford to pay their bail. 

The practice of setting unaffordable cash bail often violates the Constitution. It is expensive to taxpayers, ignores effective, community-based alternatives and wreaks havoc on the lives of individuals and families.

Monetary bail began as a system to ensure people returned to court as their case progressed. However, it has morphed into unjust and unconstitutional wealth-based incarceration without due process.

Last November, the American Civil Liberties Union (ACLU) of Florida filed a class action lawsuit on behalf of Hodges and 10 others after judges in Manatee and Sarasota counties set unaffordable cash bail amounts –even though these judges were explicitly made aware that the individuals were unable to pay.

The class action lawsuit was dismissed by a Florida court on technical grounds. The ACLU of Florida refiled the 11 cases individually. The Florida court did not provide relief in any of the cases, and it offered no explanation as to why the unaffordable amount was the only bail figure that would work. Still, the ACLU of Florida continues to fight for Hodges and others who languish behind bars simply because they can't afford their cash bail.

In the case of Hodges and many others, prosecutors did not perform their constitutional duty to establish reasons why an affordable bail, coupled with pretrial supervision or other nonmonetary conditions, could not clearly substitute for a cash bail to serve the state’s legitimate pretrial interests. They ignored solutions that would benefit everyone.

Our Constitution’s due process clause protects people from the unnecessary deprivation of rights, including pretrial detention. And Florida’s pretrial detention statute provides a way to detain people who are perceived to be particularly dangerous. Yet prosecutors rarely employ this tool. They simply request an unaffordable bail amount with the intent that it will accomplish the same detention outcome – or they are recklessly ignoring the fact that it may do so.

In Manatee and Sarasota counties, the average cost of jailing an individual is about $90 a day. With at least 500 people being held in pretrial detention simply because they cannot afford bail, taxpayers are spending $45,000 every day to warehouse people who have not been convicted of a crime. The numbers are significantly higher in other counties that detain more people or have higher incarceration costs.

Alternatives to unaffordable bail are plenty. Court reminders, travel restrictions, pretrial supervision, drug treatment and, when necessary, home detention work well and keep folks out of jail.

Meanwhile, the Bail Project – a national nonprofit organization that pays bails for those who can't afford to do so – is single-handedly proving that personal financial stakes are unnecessary. Those who have their bails paid still appear for their court dates, and they act in a law-abiding manner as they wait to do so. The only difference is that they are able to reunite with their families and maintain employment while awaiting their day in court – thanks to the Bail Project's commitment to paying bails for those who cannot afford them.

The decision to set unaffordable bail has devastating effects. For many, unaffordable bail means losing their jobs, housing and children. But because most people who are detained will ultimately be released to our community, access to employment, housing and loved ones are essential to guard against recidivism.

In addition, prosecutors often use detention to secure pleas with lengthy sentences. Some people plead guilty just to get out of jail, and their families pay the price. In some cases, unaffordable bail leads to years of horrific abuse, irreparable harm and trauma – and right now it is also leading to a greater risk of contracting COVID-19. We have witnessed too many horror stories.

Wealth-based incarceration without due process is unjust, unfair and un-American. That's why as our nation grapples with conversations about criminal justice reform, safety and the treatment of disadvantaged people, Florida should end its reliance on unconstitutional bail practices and ensure that all people have due process under the law.

​​This week, the Centers for Disease Control will decide whether or not to finally end a policy that has shut down asylum at the Southern border for two years. The Trump White House reportedly pushed the CDC to use its public health authorities — Title 42 — to enact the shutdown, over CDC experts’ objections. Since taking office, the Biden administration has kept the policy in place, despite increasing condemnation from public health officials as well as the loosening of COVID-19 restrictions across the country.

Under the Title 42 order, the Biden administration has repeatedly denied people fleeing violence and persecution the right to seek protection and has sent them directly back into harm’s way, subjecting Black and LGBTQ+ asylum seekers to particular risks. Human rights organizations have documented nearly ten thousand heartbreaking instances of people being kidnapped, tortured, sexually assaulted, and murdered as a result.

These mass expulsions to danger fly in the face of American values and U.S. legal commitments. They are also an affront to the basic humanity of people seeking safe sanctuary and lack a public health rationale.

In early March, the U.S. Court of Appeals for the D.C. Circuit court issued a unanimous ruling in a case brought by the ACLU and partners challenging Title 42 expulsions. The filings detail horrific experiences suffered by people seeking protection, including the account of a Honduran woman who was expelled with her young daughter by border officials at night. After she exited the international bridge into Reynosa, several armed men grabbed her and covered her face with a black hat and forced her into a car. While being held, she was raped multiple times as she begged her captors not to harm her daughter. Tragically, their experience mirrors those of countless other people expelled under Title 42.

The D.C. Appeals Court recognized the grave dangers faced by those subject to Title 42, and ruled that it is unlawful for the government to expel people without first ensuring they will not be returned to torture or persecution. The court also questioned the policy’s public health justification, noting that it “looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.”

Though Title 42 has been misused as a border enforcement tool, it actually falls under the authority of the CDC. Senior Trump officials reportedly pushed the agency to implement the policy, and Biden White House officials are thought to be far more involved in decisions over its continuation than they let on.

To date, no career CDC scientist has publicly expressed public support for the use of Title 42 — we have heard only from political appointees.

The CDC recently issued an order terminating Title 42 as it applies to children who arrive at the border alone. CDC Director Rochelle Walensky correctly found no public health justification for expelling unaccompanied children from the U.S.

Dr. Walensky said the CDC will complete a new review of Title 42 by March 30 to decide whether to end it entirely. Public health experts have demanded it does so. Indeed, the core of Dr. Walensky’s analysis — that we have entered a “different phase” of the pandemic — applies equally to unaccompanied children, families, and adults. She cited widespread vaccination and infection-induced immunity, the availability of other mitigation tools (such as testing and treatments), dramatically higher vaccination rates around the world, and new plans to detect and quickly combat future variants. Accordingly, COVID-related restrictions have been lifted in most U.S. jurisdictions, including border communities.

Keeping this extraordinary policy in place as so many other restrictions are eliminated would lay bare the truth of Title 42: It was always a way to illegally restrict access to asylum, and not about public health.

Our government has the tools it needs to safely screen people at the border, as our laws require, to determine whether they qualify for asylum or other humanitarian protections. The CDC should resist any political interference from the White House and end Title 42 in its entirety.

If the agency continues a policy that lacks a public health rationale, it will signal to the American public that the CDC cannot maintain scientific integrity and independence in the face of political pressure and further erode trust in the agency. It also risks that its legacy will be sending vulnerable people into danger, rather than saving lives as it was created to do.

There’s a lot of discussion all over the world about the future of money. Cryptocurrency has, of course, become a multi-trillion-dollar market. Despite this success, cryptocurrency has not become a fully functional currency, and, for a variety of reasons, most governments do not want it to be. As a result, the U.S. Federal Reserve and other central banks around the world are actively discussing the possibility of creating a “Central Bank Digital Currency,” or CBDC. President Biden, in a recent executive order, declared that his administration “places the highest priority on research and development [of] a United States CBDC.”

But what will such a “digital dollar” look like?

Real dollars — cash — have a set of qualities that are hard to replicate in a digital currency. Cash is universally accessible, universally accepted, relatively stable in value, and can be exchanged for goods and services without transaction fees. And it lends itself to privacy, anonymity, and free expression. Unlike digital mechanisms like credit cards and Venmo, there’s no middleman tracking our every use of cash — or in a position to block transactions it doesn’t like. These are some of the reasons that we think it’s important that the United States preserve people’s option to use cash, for example by requiring stores to accept it. Cash is also used disproportionately by the most needy in our society. And sometimes people need to hide assets — for perfectly legal reasons. Consider a woman enduring domestic abuse whose husband drinks away the family’s income every month.

Nevertheless, it’s clear that there’s a strong demand in today’s world for remote and in-person digital payment systems.

So far, that demand has been met by credit cards and assorted other private-sector electronic payment systems such as Venmo. But these systems have none of the advantages of cash and many problems — most significantly, they are terrible for privacy and not accessible to many people who don’t have phones or aren’t tech savvy. The private companies that run them also suck fees out of the financial system that are out of proportion to the value of the service they provide, imposing barriers on the most vulnerable people.

Advocates have touted the potential for cryptocurrency to fill the demand for digital payments. We share the values of those cryptocurrency and blockchain enthusiasts who embrace the technology because they believe money should be private and permissionless. We also generally view decentralization as a good thing when it comes to technology.

Cryptocurrencies and blockchain, however, are not yet a viable daily currency for people. We can’t predict how these technologies will evolve and what implications such evolution may have for civil liberties. But whatever uses they come to serve in our society, it doesn’t look to us like cryptocurrencies will become a digital dollar anytime soon. The most prominent cryptocurrencies fluctuate wildly in value, are inefficient at processing transactions, inaccessible technology-wise to most people, and inelastic (not allowing the money supply to be adjusted — crucial to avoid the kind of economic instability that plagued the United States before the creation of the Federal Reserve in 1913, and which has led every advanced nation in the world to create a central bank).

Cryptocurrency is also not actually foolproof at providing privacy. Part of that is because it is based on blockchains that are inherently public, which exposes all transactions to public view even if they purport to obscure the identities of those behind them. Once the government succeeds in identifying the owner of a crypto wallet, all their past transactions using that wallet become exposed. (Overbroad application of securities and anti-money laundering rules to cryptocurrency in ways that threaten to expand government surveillance of routine cryptocurrency transactions, which we oppose, is also a threat to privacy.)

The shortcomings of cryptocurrency and corporate digital transactions are one reason why so many people around the world are talking about a government digital currency. A big risk with such a currency, however, is privacy. If the government is running a digital currency, will it be able to see every exchange of money that takes place? Government security agencies would love to see this, no doubt. But I think it’s safe to say that most Americans would not want a currency that creates a government record every time they give a friend money for beer or pay a kid to mow their lawn.

Much of the talk has been around a CBDC, but Jerome Powell, chair of the Fed’s board of governors, recently said that any digital currency issued by the Fed would need to be “identity verifiable” — meaning it couldn’t be anonymous (and would probably rely on some kind of digital identity system, which poses a whole world of additional problems.)

One approach that some have proposed (as in H.R. 7231, the Electronic Currency and Secure Hardware Act, or ECASH Act) would be for the government to issue anonymous digital cash that people could store on a smart card or their phone. Users could transfer the cash directly to each other without any fees, snooping middleman or centralized ledger recording every transaction, or requirement for a smartphone, tech savvy, or an internet connection. It would be a true bearer instrument — as with physical cash, nobody would monitor your transactions, and if you lost your smart card, you’d be out of luck.

Nobody wants to give tax-evading billionaires or criminals new ways to send millions of dollars around the world without accountability. The very wealthy people who deal in those kinds of amounts can fend for themselves when engaging in such transactions. A digital cash system could use devices that will only hold a maximum amount (such as $10,000, which is currently the limit over which cash transactions must be reported to the government). It is true that someone could store large amounts by aggregating numerous devices, but remember too that paper cash as well as assets like diamonds can still be used to illicitly transfer large sums. As with illegal paper money transactions now, the authorities would also still have the plentiful investigatory powers at their disposal to investigate and deal with illicit shipments of digital dollars.

We shouldn’t expect digital cash to be more crime-proof than regular cash — and it’s not worth giving up all our financial privacy for that goal.

Perhaps the biggest question around this kind of digital bearer instrument is whether devices can be sufficiently secured. The technology obviously won’t work if people could break into the devices that store money and make unlimited amounts of “counterfeit” digital dollars, and it’s not clear whether a system can be designed that effectively prevents that. It’s worth trying, however, and research should get underway toward that goal. And we shouldn’t expect perfection. Just as physical cash already is subject to use in crime, so is it also subject to counterfeiting; we have a police force (the Secret Service) charged with combatting it, and have always absorbed certain costs as a society in exchange for the enormous benefits that physical cash brings. We should similarly be willing to absorb proportional costs in exchange for the benefits that a true digital cash would bring.

Creating a new form of money is a big step, and if we’re going to do so we should do it right. It should be a public good that is available to all and to the greatest extent possible replicates the advantages of physical cash, especially privacy, anonymity, and accessibility to all. A digital bearer instrument is the most promising path toward that goal.