This Q&A is part of a series where we highlight the work of various NPPJ partners.
Thea Sebastian is the director of policy for the Civil Rights Corps, a Washington D.C.–based non-profit that aims to create systemic changes in the legal system that “promotes equality and human freedom.”
Civil Rights Corps has won landmark cases in Harris County, Texas, and California that attacked cash bail systems that violated people’s constitutional rights by relying on money to secure their freedom. Across the United States, Civil Rights Corps attorneys work with communities to fight for bail reform, challenge the abuse of prosecutors, end the criminalization of the poor, and help those who can’t afford legal help.
This interview has been edited for length and clarity.
NPPJ: What is the importance of pretrial reform?
Thea Sebastian: The short answer is that every single day across this country, hundreds of thousands of legally innocent people are sitting in jail on pretrial detention, which has devastating effects for families and local communities. Even if it’s only for a tiny window of time—24, 48, 72 hours—people can lose their jobs, their homes, even their kids. This issue is a real emergency. We see it as both wealth-based discrimination and race-based discrimination with how it’s disproportionately affecting Black and Brown communities that already face systemic discrimination.
NPPJ: Civil Rights Corps isn’t just fighting the status quo, but actually has a Model Bill for pretrial reform. What is that and what does it accomplish?
TS: The CRC Model Bill sets out a framework for a pretrial system that does not rely on money, that does not rely on algorithmic risk assessment, but that really maximizes pretrial liberty for the folks who are being put through the criminal legal system.
The way that the bill works, first and foremost, is that it carves out a large category of individuals who have to be released on recognizance—and ideally that release will happen via some sort of a cite-and-release program. But the idea of getting so many people out on the front end is that you then conserve resources, so that anybody for whom conditions, let alone detention, is an option, can be receiving a robust, adversarial hearing, as is their constitutional right.
The second element of the framework is to say that among anybody who is not released immediately on recognizance, there is only a small, tiny subset of individuals who may be eligible for pretrial detention. That’s called a detention eligibility net. That net is very narrow because we’re trying to live up to the constitutional obligation to ensure that pretrial detention really is the carefully limited exception.
For anyone for whom conditions or detention is an option, they have to have a hearing where there is counsel present, where you can testify, where you can present witnesses, where you have the sort of procedural protections that are set out in the Supreme Court’s Salerno case.
Another thing to highlight is that voluntary pretrial support, such as text messages reminding a person of their court date, has to be a big piece of successful bail reform. Nonappearance for a court date is generally caused for incredibly mundane reasons—because your babysitter didn’t show up, you couldn’t get time off your job, your car broke down on the way to the courthouse. The point is that voluntary pretrial supports are the real way to ensure that people show up. Detention should never be imposed for mere risk of non-appearance—and, frankly, neither should restrictive conditions.
The final thing lawmakers should always have in mind is that if you really implement this framework, you’re going to have many fewer people sitting in jail. That’s the whole point: We’re trying to maximize pretrial liberty as much as possible. And as you start to save money by closing jail wings—and ideally maybe closing jails—you should make sure that money is being reinvested into the community, specifically going back to repair some of the damage that has been done by these last decades of systemic disinvestment and by the over-policing issues that have really filled up our jails to start with.
NPPJ: How does the process work when you go in and work with these various jurisdictions?
TS: One thing I will say is that we try to be in service of local advocates. I would never sit back and say, “I have a cool policy idea. Where is the city to go do it?” That’s not how we approach policy work. Instead, it’ll be more the case of a jurisdiction, an organizer, a group on the ground, coming to us and saying, “Here’s a thing I’m working on, can you help us with this aspect?” Then the process basically looks like, if we are invited in, do we have the skills to be useful? How can we be most useful? And then it’s making ourselves available. We certainly try not to have a top-down way of pushing things out.
A lot of our time and energy is spent focusing on the kind of model frameworks or resources that can be broadly applicable and then helping folks who then want to use them as part of their work. So, for example, the CRC Model Bill. We get calls from advocates saying they want to look at bail reform, can the bill be a framework, and how would it work in their jurisdiction? We’ll work with them through that. And that’s a much more comfortable position for us to be in rather than starting at square one.
NPPJ: Speaking of bail reform, Illinois just became the latest state to end cash bail. What does that mean going forward—will more states follow suit?
TB: It’s a good question. One thing I think it will take is models—and by models I mean that seeing is believing. People are very much stuck in this mind frame that safety is synonymous with places that lock people up, and there are obviously many of us who know that’s not true. But we don’t have that many good jurisdictions to point to and say, “Here’s a community service agency that is really investing robustly in upfront services and look at how much better off people are because this is the approach they’ve taken.” I think the more we can start to get these sorts of models up and running, that’s going to help.
I think a second thing is that we cannot discount the incredible narrative shift impact of these broad-based social movements. The kinds of conversations that are happening now would have been completely impossible without the kinds of uprisings that happened after the murder of George Floyd, the work of Black Lives Matter, all of the on-the-ground organizers. It has really expanded the window for reforms in all of these areas—not just pretrial, but in sentencing and really everything else across the criminal legal system.
That can’t let up. There has to be an ongoing conversation, because these changes are not going to happen overnight.
NPPJ: How have you seen the COVID-19 pandemic affect the pretrial system?
TS: Early in the pandemic, there were a lot of changes happening on a fairly routine basis to change some pretty fundamental injustices that have been happening for years. There have been a lot of folks released who were booked on very low-level charges that they should not have been in jail for in the first place.
You also had jurisdictions that were addressing debt-based driver’s license suspensions, which is another huge reason why people will land behind bars. We had seen a lot of these sort of changes—changes to fees and fines—to the collection of these sorts of legal financial obligations. So you did have these changes happening with, frankly, a release of people being the most important of these for the very obvious life-or-death reasons.
It does seem a lot of that momentum has really faded. This is incredibly unfortunate, not only because the pandemic is obviously worse than ever across the country as a whole, but because even once the pandemic is under control in the rest of the country, jails and prisons are going to remain such a problem area. The incredibly unique conditions of confinement are just this petri dish ripe for disease in an absolutely devastating way.
So I’m hopeful that now there is a new administration in place, they will take this seriously. And there are so many things that they can be doing, starting with the fact that the CDC should be recommending the prioritization of folks who are incarcerated in a much bigger way than they are now for vaccinations.
NPPJ: And it’s heartbreaking to think about all the people housed in jails who haven’t even been convicted of a crime, all because they can’t afford bail to secure their freedom.
TS: It’s heartbreaking for them. It’s also almost even more heartbreaking for their families. Can you imagine if it was your mom sitting in that jail cell, and you’re sitting there every day worried that she is going to come down with this illness? You can’t visit, you can’t hear them, you can’t touch them, information is spotty. My heart goes out so much to all of the folks on the outside who are doing everything possible to try to earn releases for their loved ones, but oftentimes they’re just up against a system that they can’t control.
NPPJ: That’s a difficult, depressing realization. Before we go, do you have parting, uplifting thoughts looking forward?
TS: My parting thought is that for all of the many challenges we’re up against, I do think that those challenges have created a window of opportunity that it is all of our collective responsibility to lean into. The COVID-19 pandemic has exposed in a historic way the inequalities that were already present. The way that this pandemic has disproportionately impacted Black communities. The George Floyd murder—that murder illustrated a problem that’s been around for ages. But the protests peeled back a lid on what’s going on in our policing system. So when you put these two things together, there actually is a political moment here where I think people are listening, people are paying attention, people want answers.
And the encouraging note is that not only is there this opportunity, but that there are people now who are pushing forward answers that make sense. You take the Movement for Black Lives’ BREATHE Act. This is a historical policy proposal to truly imagine what a non-carceral, non-punitive system of public safety would actually look like.
So against all this insanity and chaos, the encouraging note is that there are real policy solutions on the table that can make a difference. And I think that there is a real hunger to take solutions like that and make them into a reality. There’s just a lot of links in the chain that we need to put together.
I’m hopeful that if we continue working together on all of these issues, we will be able to hopefully create a world on the other side of all of this that looks a whole lot better than the one that was there before.