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The presumption of innocence is fundamental to our legal system; however, hundreds of thousands of legally innocent people continue to be incarcerated without a conviction nationwide. They are disproportionately Black and Latine, languishing in inhumane conditions, separated from their families and communities, and losing their jobs, their homes, their children, and even their lives. Punishment comes before their day in court, due to unaffordable money bail, and a lesser-talked-about driver: the unchecked power of judges.
Now, a national movement for bail reform has gathered momentum with concrete wins in New York and Illinois and, recently, in California, where the Humphrey legal decision compels courts in the state to set affordable bail. But beneath the surface of these victories, judges continue to exercise their unlimited discretion to bypass policy changes. Now, organizers across the country are mounting coordinated resistance.
The movement for judicial accountability is an outgrowth of the bail reform movement. It is beginning to gain steam by seeking to limit judicial discretion, provide citizen courtroom oversight, collect data about judicial behavior, and challenge the composition of the courts. These collective efforts pose a significant threat to the carceral machine and are unlocking new strategies for anti-carceral organizers across the country.
In the early hours of the morning in July 2021, young people gathered outside Los Angeles courthouses in the heat of summer to inform the community about a new tool that allowed them to publicly judge the judges who determine their fate or the fate of their loved ones: Rate My Judge (RMJ).
Inspired by the student-driven tool Rate My Professor, RMJ was the brainchild of La Defensa, an organization I founded in 2019 with my comrade Eunisses Hernandez, now a newly elected L.A. City Councilmember. We are two Chicanas who have spent our lives seeing our families and communities criminalized, and have spent years leading abolitionist campaigns to fight and dismantle the criminal legal system. It was through these campaigns that we identified a gap in our organizing: the need for judicial accountability.
We built RMJ to serve as a “Yelp” reviewing site for judges, allowing community members to anonymously provide feedback on judges in the L.A. County Superior Court, rating them on everything from their demeanor to their lawfulness. Since its launch in summer 2021, RMJ has had over 6,000 visitors engage with the site, and has informed both advocacy and electoral strategy in L.A. County.
The community’s feedback is helping organizers identify which judicial seats should be challenged in upcoming elections. Data on judicial conduct—such as refusal to implement the Humphrey decision, and the racial disparities of court decisions—bolsters demands for policies to limit judicial discretion and curtail racial bias.
La Defensa is not alone in holding judges accountable. Organizers across the country are developing data platforms like RMJ, and community members are sitting in courtrooms documenting judicial behavior. But challenging the most unaccountable branch of government has all the trappings of David and Goliath.
The power of the bench reverberates through every facet of our social system, yet it remains largely unexamined and unchallenged. The expansion of judicial power over the past 30 years has given rise to the incarceration of legally innocent people through “preventative detention,” or the imprisonment of a person awaiting trial under the assumption that they are likely to commit crimes if they were released.
The Bail Reform Act of 1984 authorized judicial officers to exercise preventative detention and to consider the characteristics of the accused—including their psychology, history, and physical state—to predict the defendant’s likelihood of committing crime. The effects of the act were almost immediate: In the four years that followed its passage, two-thirds of defendants were held until trial on pretrial detention, compared with only 7% before the act.
This practice then spread from federal to local courts, fueling the rapid expansion of prisons, immigrant detention centers, and jails across the country to warehouse the increased number of people held pretrial. In fact, the number of people jailed without a conviction has almost quadrupled since the 1980s.
According to research by the Prison Policy Institute, nearly two-thirds of people in jail across the country are detained without a conviction. The growth in the total jail population over the past 25 years is the direct result of an increase in pretrial detention, rather than an increase in the number of convicted people held in jails.
The 1984 act also propelled the development of risk assessment tools (RATs), algorithms that take discrete facts about an individual, such as their age and employment status, to create a profile that is then compared with large groups of people with similar profiles. RATs produce a risk score, like a credit score, that determines the risk of being rearrested and is used by judges to make detention decisions.
Although data experts from leading academic institutions have concluded that the data used in RATs are “distorted” and functionally serve as proxies for race, these predictive tools and standards continue to be weaponized by judges, evoking the chilling world of the 2002 dystopian film Minority Report, in which individuals are punished by the state before they commit a crime.
In response to this technocratic judicial overreach, organizers throughout the country have developed, piloted and pushed for new pretrial systems that do not rely on racial profiling or expanded judicial power, but instead focus on assessing the needs and strengths of an individual and providing them the support needed to return to court.
There are numerous examples of these new models of public safety. Simple solutions, like text message reminders for people to report to court, have resulted in dramatic reductions in failure-to-appear rates in Arizona and New York. Further, the Bail Project’s national model—which pays for an individual’s bail, provides a case worker, and connects them to services—has helped free 17,500 people with a 96% return-to-court rate.
In San Jose, California, Silicon Valley De-Bug’s Participatory Defense program, a program developed by families impacted by incarceration, empowers individuals, their families, and their communities to partner with public defenders to impact the outcome of their case; this model has seeded similar programs across the U.S.
The success of these community-driven models is proof that an approach centering community-led support and care, rather than racial profiling and a presumption of guilt, leads to better public safety results. However, judges continue to dismiss data-driven public safety outcomes to maintain power.
While challenging judicial power at the federal level is limited by the appointment process, at the local level, communities have an untapped advantage: judicial elections. Unlike the federal system, local judges can also be elected in most states, but most voters are uninformed about the importance of those races and the candidates on the ballot. This lack of voter engagement has allowed the political right and pro-law-enforcement interests to shape the makeup of local courts, even in the most progressive counties, like L.A.
Courts across the country also lack in racial and gender diversity, as well as diversity of legal background and experience. The majority of judges are former prosecutors, further entrenching bias in judicial decision-making.
Now, a new wave of progressive candidates and organizers are not only exposing judicial behavior and challenging the systems that empower judges, they are challenging their very seats of power. Inspired by the success of progressive and abolitionist judicial candidates, like Judge Franklin Bynum in Harris County, Texas, and the Slate of Eight in Pittsburgh, La Defensa formed a PAC in 2022 to support progressive judicial candidates in L.A. County.
The results were historic. The La Defensa Justice PAC helped elect Holly Hancock, the first Black public defender ever elected to the L.A. County Superior Court. Despite progressive voting trends, until last year, L.A. County had also never before elected a public defender to the judicial bench, exclusively electing (mostly white, cis male) prosecutors to judgeships.
For decades, candidates with prosecutor backgrounds have had the advantage of financial support from conservative and law enforcement special interest groups and the skewed bar ratings process, but the emergence of progressive groups like ours, which are recruiting, training, and running progressive candidates, offer voters an alternative to the status quo.
Hancock’s win is a major disruption of the prosecutor-to-bench pipeline, and it cracks open the door for future progressives who seek judicial office. But it’s important to understand the limitations of this strategy. While electing progressive judges serves as a harm-reduction measure that disrupts power, it can only be effective as part of a broader abolitionist strategy—one that builds out community-led models of safety we all deserve.
Abolitionist thinker Mariame Kaba teaches us, “Cages confine people, not the conditions that facilitate their harms or the mentalities that perpetuate violence.” Every time a judge condemns someone to a cage, it is a collective failure of society, so it will take collective action to end incarceration in all its forms. Disarming judicial power is just one tool in our arsenal, but it is one we have only begun to explore. My hope is that all who are passionate about systemic change can imagine the possibilities with us, because we who believe in freedom cannot rest until it comes.
Ivette Alé-Ferlito is an abolitionist movement leader, and Co-Founder and Executive Director of La Defensa. As a queer femme, and formerly undocumented person, Ivette has been organizing and leading anti-carceral campaigns in California for nearly a decade. They have helped found and lead multiple coalitions, including JusticeLA and ReimagineLA, supporting historic victories including ending LA County's $3.5 billion jail expansion plan in 2019, and the passing of Measure J in 2020, which secured hundreds of millions of county dollars for community investment. They previously served as Policy Director at Dignity and Power Now, and Statewide Coordinator at Californians United for a Responsible Budget. They can be contacted at: ladefensa.org / [email protected]