It is now well known that our country’s widespread use of money to determine someone’s freedom after arrest — a practice commonly referred to as cash or money bail — is harmful, unnecessary, and against the core principles of our Constitution. Over the past several years, a massive wave of political and legal action has taken aim at addressing the tremendous suffering and bad public policy embodied in our cash bail systems. Just this summer, “ending cash bail” was one of the agreed upon policies in the platform released by Bernie Sanders and Joe Biden. Jails are among the most dangerous clusters of COVID-19 transmission, and cause further spread in surrounding communities. The work of diverting people from unnecessary incarceration is thus all the more urgent.

While stakeholders across the ideological spectrum seem to care about addressing the evils of wealth-based pretrial jailing, it remains to be seen whether any of those efforts are actually working. Sadly, our recent study in the Georgia Law Review suggests we have a long way to go even after claiming reform victory.

Alongside two law professors, two computer science students, and a cadre of amazing student and community volunteers, I studied whether bail reform has worked in a state that has heralded numerous “bail reforms” over the past few years. In 2018, Georgia passed legislation aimed at improving fairness in misdemeanor cases, which included requiring authorities setting bail to consider a person’s finances. Later that year, the 11th Circuit Court of Appeals issued a ruling in a class action lawsuit challenging Georgia jurisdictions’ use of money bail to incarcerate people who are unable to pay to secure their freedom. The court found “presumptively constitutional” a system in which all arrestees, including those too poor to post bail, were guaranteed release from jail within 48 hours of arrest and provided individualized hearings with the assistance of a lawyer.

Our study examined whether the constitutional principles outlined by the 11th Circuit as well as the updated Georgia law were actually being followed in practice. Examining a representative sample of 51 Georgia counties through court observations, review of court records, interviews, and surveys of court and jail staff, we assessed each county’s compliance with legal mandates required by bail reform.

What we found was disheartening: Not one of the counties studied was in full compliance with the law, as none of them practiced all four of the legal requirements we studied. Most counties only satisfied one or two of the requirements, and many failed on all four:

1. Evaluation of the individual’s ability to pay when setting bail (48.7 percent of counties studied were in compliance)
2. Holding of an individualized bail hearing that evaluates a person’s finances within 48 hours of their arrest (41.3 percent)
3. Guaranteed release within 48 hours of arrest of a misdemeanor (8.3 percent)
4. Availability of public defender when bail is set (11.9 percent)

Among the 18 counties for which we tracked jail-inmate registries from May to November 2019, 36.7 percent of those arrested on new misdemeanor charges only, with no other holds, spent three days or more days in jail. The average jail time was 8.7 days.

Although the results suggest that, on the whole, Georgia courts are not adhering closely to either state or federal law, a handful of counties appear to be headed in the right direction. Many judges, sheriffs, and court administrators are aware of recent legal developments and are making serious efforts to eliminate unnecessary detention. On the whole, however, even those promising jurisdictions need to either provide their post-arrest processes more quickly, and/or take the ability-to-pay inquiry one step further to assure release for those who have not been able to post bail by the time of a hearing.

Our findings should be a wake-up call to everyone who cares about fairness and positive change in our criminal legal system, both in Georgia and across the country.

My colleagues working on issues of racial and criminal justice in Georgia note the significance of our findings, observing firsthand the disconnect between the law and practice in the context of bail reform.

“The ACLU of Georgia regularly receives reports about incarcerated people accused of misdemeanors who are stuck in jail because they cannot afford their bonds,” said Kosha Tucker, staff attorney with the ACLU of Georgia. “Many of these reports come from incarcerated people who are under the jurisdiction of local municipal courts, and this is particularly concerning because indigent defendants in municipal courts often lack access to counsel who could argue for their release on nonmonetary conditions.”

Of course, our study wasn’t perfect. In most places, pretrial justice suffers from a lack of robust data collection, and court proceedings are rarely recorded. Studying this issue is even harder in states like Georgia where the courts and jails are locally run. (To boot, Georgia has 159 distinct counties, each with their own criminal legal system.)

Even so, this undertaking — the first of its kind to our knowledge — has huge implications for the work of advocacy groups, including the ACLU. After all, we lobby for changes in the legislature and use the courts to correct injustice every day. While these are important levers of change, no one’s work is done until those changes are realized in the very places they most counted to begin with: courtrooms and communities where poor people and people of color are being subjected to cruel and unfair incarceration and removed from their families all while presumed innocent, every day.

As a deadly pandemic rages through the country, and jails in particular are dangerous hotspots, it’s of critical importance that reforms are followed, not ignored (and certainly not walked back). If local officials merely followed the existing law, we would have fewer people in jails and would lessen the spread of the pandemic. Indeed, one of the counties studied for our report, Clayton County, which was not providing all the protections required by law, is now the subject of an ACLU lawsuit for its failure to protect incarcerated people from COVID-19.

As the election approaches, those who care about fair process in the criminal legal system should ask candidates for sheriff’s offices and local judicial positions for their stances on cash bail and pretrial incarceration. These positions carry a tremendous amount of power in ensuring laws are implemented and progress is maintained. (And Georgians interested in preserving a fair upcoming election can volunteer with the local ACLU as poll workers.)

Read the full study “Boots and Bail on the Ground: Assessing the Implementation of Misdemeanor Bail Reforms in Georgia” in the University of Georgia Law Review here.

Andrea Woods, Staff Attorney, ACLU Criminal Law Reform Project

My wife and I have made music together for the past 8 years, in an independent band named Unsung Lilly. We are passionate about creating epic, empowering pop music.

As a same-sex couple, we have been heartened recently by the improved representation of LGBTQ people on television, and we are grateful that most people we meet are accepting of our relationship. It’s enough to make you think that maybe society has fully accepted that ‘love is love.’
Unfortunately, our recent experience with Facebook suggests otherwise. When Facebook’s platform refused to allow us to fully express ourselves as both artists and a same-sex couple, it brought back painful memories of discrimination against the LGBTQ community.

Like all musicians, COVID hit us hard. We lost all our income, and because we were in the United States on work visas, we were unable to claim unemployment benefits without risking our visas.

We were in a difficult spot, and we turned to our community on Facebook for help. We asked our fans to join our Patreon community and go behind the scenes of the creation of our new album, in the hopes that their support would keep us afloat in these unprecedented times.

We posted a video on Facebook, announcing our new album and encouraging fans to join our Patreon page. We made it a sponsored ad so we could reach as many of our fans as possible.

The ad, unfortunately, was rejected. While this happens sometimes, I couldn’t believe it when I saw the reason: Facebook had labeled our video as containing “adult sexually explicit content.”

Assuming there must have been a mistake, we sought multiple appeals and resubmitted the ad several times, but each time received the same rejection message.

We wracked our brains wondering what could be sexually explicit about our video…and then realized that it might be the image of us early in the video. It’s a romantic image of us with our foreheads touching. We use the image for all our profile photos across all platforms because we believe it’s a beautiful artistic shot of two people in love. You can watch the video here.

When we talked about what happened on our social pages, many of our friends and fans shared our outrage. Some people even came up with possible explanations for why the ad was rejected. These ideas included theories such as “Facebook doesn’t allow intimacy of any kind in their advertisements, it would have been the same with a hetero couple,” and “what about the nature of some of the dancing shown later in the video.” We wanted to understand why our ad was rejected. So, we ran a test. We posted another ad with the exact same video and copy, but we changed the photo of us to a ‘nonromantic’ photo. The ad was approved.

Next, we tried the same video and copy but replaced the photo of us with a picture of a heterosexual couple in the same romantic pose.

Guess what? The ad with the heterosexual couple was approved too.

https://www.youtube.com/embed/uzOTT2FwGow

The ACLU helped us contact Facebook. The company claimed the ads were rejected ‘incorrectly’ and assured us that the rejection had nothing to do with the LGBTQ content, but rather the dancing in the video. They would not explain why the ad with the exact same dancing but with a heterosexual couple was accepted in our tests.

If Facebook is restricting LGBTQ content because Facebook’s systems consider our kind of love to be “adult” and “sexually explicit”, that means they are actively erasing the LGBTQ experience and silencing LGBTQ voices.

As members of the LGBTQ community, we know how important it is to see ourselves represented and reflected in the media. Visibility can save lives, particularly for transgender people, LGBTQ people of color, and youth.

Women are often over-sexualized, and female couples even more so. Two women in love, gently resting their foreheads together is romantic—not sexual. By rejecting images like this, Facebook is reinforcing the hyper-sexualization of women and female couples.

When we spoke on social media about our experience, other LGBTQ people shared similar stories of being censored by Facebook. These are not isolated incidents. In fact, we learned that Facebook has a history of censoring LGBTQ advertisers. And Facebook’s problems are not limited to the LGBTQ community, Black creators documenting police violence have recently seen their pages temporarily taken down completely. Facebook calls these “mistakes” but isn’t doing enough to stop them from happening again.

Facebook is a platform that claims to connect people, so why does their platform silence LGBTQ voices and prevent them from connecting with their communities? Facebook has a responsibility to represent everyone in a fair and just manner. That means addressing how the LGBTQ community can feel at home on Facebook when the platform appears to discriminate against members of our community for showing who we are.

Today we join the ACLU of Northern California in calling on Facebook to take the following steps:

1. Audit Facebook’s Community Standards and Advertising Policies. 
   Facebook should commit to an audit of its community standards and advertising policies, looking specifically at whether standards for “adult” content disproportionately remove content of women and same-sex couples.
    
2. Real Removal Transparency. 
   Facebook’s message about our ad violating the rules was confusing and unhelpful, which prompted us to design a test to determine what happened. Facebook should tell all users exactly what about their content purportedly broke the rules.
    
3. Meaningful review of a contested removal. 
   We were privileged to have contacts at the ACLU who could reach out to Facebook on our behalf, but that shouldn’t be necessary. Facebook should commit to ensuring that appeals are taken seriously, carefully considered, and communicated effectively to users.

Sera Golding-Young

On Sept. 11, Gov. Ron DeSantis and state Republican leaders won their legal battle to disenfranchise hundreds of thousands of people with prior felony convictions. The U.S. Court of Appeals for the 11th Circuit embraced Republican politicians’ specious arguments that ex-felons should be required to pay all fines and fees before voting.
 
This decision dealt a blow to Floridians who care about racial justice and basic principles of democracy. The ruling also spited an unlikely and less discussed constituency: Republican voters.
 
This story starts in 2018, when DeSantis and Republican politicians campaigned against Amendment 4. The ballot measure abolished the permanent disenfranchisement of people convicted of most felonies. Vowing to be a “tough on crime” governor, DeSantis opposed the initiative.
 
Republican voters disagreed with him. Before Election Day, poll after poll showed a clear majority of Florida Republicans supported Amendment 4. Support among Florida Republicans climbed to 62%.
 
These numbers were not outliers. Nationally, 58% of people who voted for Donald Trump in 2016 support restoration of ex-felons’ voting rights.
 
On Election Day, the Sunshine State’s Democratic hubs turned out in force for the measure. So did the state’s most Republican regions. Amendment 4 won in 61 of Florida’s 67 counties. Conservatives, from the ruby-red Panhandle to the sea-green suburbs of Sarasota, voted for the measure.
 
Consider election results from individual counties. Voters in Gadsden and Broward counties, where Hillary Clinton received more than 65% of votes in 2016, supported Amendment 4. But so did a majority of voters in Dixie County, where Donald Trump garnered over 80% of votes in 2016. As did a majority of voters in Calhoun, Liberty, Walton and Washington counties, where Donald Trump earned more than 75% of votes cast in 2016.
 
In an era of rancorous politics, this resounding, bipartisan consensus over voting rights might seem unexpected. But attentive observers of Florida politics weren’t surprised.
 
The political strategists and grassroots activists behind Amendment 4 built an inclusive campaign that directly appealed to conservatives. Desmond Meade, a civil rights activist who spearheaded the campaign for Amendment 4, recruited a Republican staffer named Neil Volz to be the effort’s political director.
 
They enlisted Christian conservatives, who told voters that “redemption and second chances” were at the “heart of the Christian faith.” They recruited business executives who discussed the economic harms of permanent disenfranchisement and mass incarceration. They accepted support from liberal billionaire George Soros — but also from the archconservative Koch brothers and the religious right.
 
Together, this motley alliance — of the ACLU and the Christian Coalition, of libertarians and labor unions — won. And won big. A supermajority of Floridians supported Amendment 4, which amassed 1,072,740 more votes than DeSantis received on the same ballot.
 
Even before assuming office, DeSantis and his allies began plotting to undermine the will of Florida voters and, importantly, the will of Republican voters. They devised a scheme that conditioned ex-felons’ rights restoration on how much money they have. This “pay-to-vote system,” according to Judge Robert Hinkle of the Northern District of Florida, amounted to a modern-day poll tax.
 
Fast forward to Sept. 11, when the 11th Circuit sustained this poll tax. Commentators were quick to depict the ruling as a win for Republicans. In reality, the decision was a win for Republican party elites and a loss for voters of all partisan affiliations.
 
Sadly, this is not the first time that Republican party elites have ignored the wishes of regular Republican voters. A majority of Florida Republicans want the state to expand Medicaid under the Affordable Care Act. DeSantis refuses. 86% of Florida Republicans are concerned about climate change. DeSantis earns a “D” from the Sierra Club for his climate-change record. Blocking voting-rights restoration is just the latest episode of Republican leaders pandering to the far-right fringes and special interests at the expense of the majority of Republican voters.
 
It’s easy to look at this episode and get cynical about American politics. But that would be the wrong lesson to take from the Amendment 4 saga. At a time of bitter, partisan division, a supermajority of ordinary Democrats and Republicans joined forces to pass the most significant expansion of voting rights since 1965. Even if DeSantis scored a pyrrhic victory before the 11th Circuit, he can’t hold back this broad, bipartisan coalition forever.
 
This op-ed was originally published in the Orlando Sentinel.

Duncan Hosie