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December 2, 2024
Illinois Has Put an End to the Injustice of Cash Bail
Amid a national backlash against criminal justice reform, Illinois has achieved something extraordinary. It’s working better than anyone expected.
A blue-carpeted, neon-lit courtroom in downtown Joliet, Illinois, a former steel town about 40 miles southwest of Chicago, fills with the sounds of clinking metal as a handful of people in handcuffs are led in on the afternoon of August 28. Only three people sit in the pew-like wooden benches at the back that are reserved for the public.
At 1:45 pm, the first defendant, a Black woman with blond hair, is called to stand at a podium facing the judge’s dais. This court appearance will determine whether she will be put in jail or go free while awaiting a trial. Just a year ago, her fate would likely have been determined by whether she had enough money to post bail. But Will County Judge Matthew Bertani, a white man with hawklike features and a pile of gray hair atop his head, tells her simply that she is “going to be released today.” She responds, “Thank you,” before being led out to freedom less than a minute later.
An older white man with buzzed hair, dressed in a black T-shirt and light wash jeans, is called up next. He was arrested for violating an order of protection that banned him from contacting or going near the protected person’s home. He will either be sent to jail to wait for a trial or be allowed to go free before getting due process. A prosecutor representing the state notes that the offense the man is charged with is among those that could land him in jail, but, in this case, the state isn’t seeking that outcome. Instead, because the man doesn’t have any pending domestic violence charges against him, the prosecutor asks that he be free to go home. The prosecutor requests that the defendant be required to comply with some conditions to ensure that he doesn’t pose a harm to others—that he follow the original two-year order of protection by having no contact with the other person, and that he stay 500 feet away from their address. The public defender representing him doesn’t object.
Bertani grants the prosecutor’s request to let the defendant go, again without imposing a monetary cost on him for his freedom. After the defendant asks some questions about what is expected of him while released, Bertani explains what it means to avoid contact. He warns the man that a few months earlier, someone who had violated an order of protection simply by driving past the barred address got “quite a few” days in jail for it. Then the man is led out of the room to be set free.
The next man is also accused of violating an order of protection, but it is “only an allegation at this point,” the prosecutor notes, before saying he isn’t seeking jail time. Bertani tells the man he’ll be released, and he, too, is led out of the room to return to his life without being made to pay a cent.
What looked like routine judicial proceedings in Joliet were anything but. In most of the rest of the country, judges would release these defendants only if they had come up with enough money to post the bail amount that the judge had handed down. Judges don’t have to explain their reasoning for the bail amounts they set, and there is virtually no way to challenge their decisions. Frequently, judges don’t even consider whether a defendant could afford the bail before meting out the monetary price of their release. (The median bail amount for felonies in the United States is $10,000.) The rich can bail themselves out, even if they are likely to hurt someone or flee future court dates, while poor people—and disproportionately Black people—languish in jail, which often costs them work, housing, and time spent with family. Illinois residents caught up in the criminal justice system collectively forked over an average of nearly $150 million a year in bail between 2016 and 2019. Those who couldn’t pay up were put in jail. The vast majority of people in American jails are not there because they have been convicted of a crime; instead, more than 80 percent are jailed because they are too poor to post bail.
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All of this has now changed in Illinois. After the Pretrial Fairness Act went into effect in September 2023, it became the first state to abolish cash bail. That move was “unprecedented,” said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute. And as the proceedings in late August demonstrated, the state’s court system is faithfully carrying out these reforms. Even judges who don’t like the new law—Bertani among them, he told me—are following it. Crime has not exploded; nor have the lengthier detention hearings wrecked the legal system.
Bail originated in medieval England as a way to force people to return to court to face trial for their alleged crimes (defendants get their bail money back when they return to court—but that assumes they have the money to put up in the first place). British colonizers instituted the practice in the United States for the same reason, but during the nationwide panic over law and order in the 1980s, bail became used as a way to detain people out of fear they would pose a threat to public safety. In practice, rich people could still buy their way out of jail, while poor people were stuck there, sometimes over small amounts and while facing accusations of minor crimes. Kalief Browder, a New York City teenager who was charged with stealing a backpack, spent three years in jail because his family couldn’t afford his $3,000 bail. He later took his own life.
The Pretrial Fairness Act, signed into law by Governor JB Pritzker in February 2021, stems the tide of legally innocent people in jail by abolishing bail. It also puts in place a number of sweeping changes to replace it with a fairer system—a system that doesn’t penalize people for being poor and has a mechanism for determining whether people who have been charged with crimes are actually dangerous or likely to run away. Illinois’s law mandates that for the least serious crimes, such as traffic violations, police can ticket people but not arrest them. For low-level crimes such as minor drug possession and shoplifting, people can be arrested but can’t be jailed before their trial; at most, a judge can order them to comply with conditions while they are free. For more serious crimes, such as violent or sexual offenses, if the state wants to detain people before a trial, prosecutors have to convince a judge and present evidence that they likely did what they’re accused of, that there is a high risk that they will flee or will harm a specific person or community, and that the only way to prevent those outcomes is to put them in jail. The accused must have a lawyer at their side and be given a chance to rebut the prosecutor’s arguments, and if they disagree with the judge’s decision, they can appeal.
Ending cash bail nationwide has become a key goal of the criminal justice reform movement, one part of the fight to address economic and racial disparities and prevent people from experiencing the negative effects of incarceration. Some states, including New Jersey and New York, have significantly reduced the use of cash bail. But the mood has swung heavily in the opposite direction in the post-pandemic years, and many states have implemented harsher bail practices. Earlier this year, Tennessee lawmakers banned judges from considering someone’s ability to pay when setting bail. In Georgia, legislators increased the number of crimes for which judges are required to set bail. New Hampshire lawmakers partially rolled back a 2018 reform meant to keep people from being put in jail because they can’t afford bail.
Even many states that have successfully reformed their policies have left bail in place for some offenses. What the Pretrial Fairness Act does is start to answer a question: What does the criminal justice system look like if bail is removed entirely?
Flonard Wrencher, a black man in his 60s who lives in Chicago and goes by Flo, knows firsthand how damaging Illinois’s old cash bail system was. He described himself as “a working guy” when we spoke in September, proudly showing off his new uniform for a job he was about to start as a security guard. “I absolutely have to work, because anything else is uncivilized,” he said.
In April 2016, when he was working for a friend’s company doing HVAC repairs, he was arrested and brought to the Cook County jail. (He would eventually be convicted of theft.) During his first court appearance, the judge spent no more than three minutes asking about Wrencher’s background before setting his bail at $7,500. Upon hearing that amount, “my stomach just fell out, my heart dropped, my head started hurting,” Wrencher said. That kind of money was “like a million dollars to me.” To get out of jail, Wrencher or someone he knew would have to come up with the money to bail him out, but his family didn’t have it. He wasn’t given any opportunity to make his case to his public defender or to the judge. The judge “pretty much got a set opinion already,” he said.
So he sat in jail for two consequential months. His income was “very, very important” to his household, which now had to get by without it. While he was in jail, the property his family rented was foreclosed on; his wife and family feared having to move without him. Being in jail took a toll on him. His mental health suffered. He struggled to sleep at night. He worried that when he went in front of a judge at his trial, he wouldn’t be able to put on nice clothes and have his own lawyer by his side “like a decent person.”
Eventually someone at the Chicago Community Bond Fund found out about his case and paid his bail. It was a gorgeous, sunny day when he walked out of the jail as a free man. “I thought I died and went to heaven,” he said. “I was really looking forward to coming home and going to work and doing the things I was supposed to do.”
After connecting with the bond fund, he got involved in organizing and advocating for what became the Pretrial Fairness Act, even traveling to the state capitol to share his story with lawmakers. Wrencher is proud of the role he played in ending cash bail in Illinois. “I feel good to know that I took part in it in some type of way,” he said.
The law is “long, long overdue, and it needs to be extended to other states,” he added.
The roots of the Pretrial Fairness Act reach back to the spring of 2016, when a group of grassroots organizers, faith leaders, social service providers, lawyers, and policy experts formed the Coalition to End Money Bond. Their goal was to end bail in Cook County. They used a variety of tactics, supporting lawsuits, legislation, and sympathetic political candidates, including Kim Foxx, a reformer who defeated the incumbent Cook County state’s attorney, the county’s top prosecutor, in 2016. But when they tried to push bail reform at the state level, legislators dismissed the harms of cash bail as a Chicago problem. So in 2019, more than 40 organizations launched the Illinois Network for Pretrial Justice to push a statewide reform.
Advocates knew they couldn’t end the use of bail without replacing it with a new system for determining who would be detained and who wouldn’t; otherwise, judges could simply send more and more people to jail without a way to get out. The legislation they developed was shaped by people with firsthand experience of the harms of bail, many of whom, like Wrencher, were recruited after the Chicago Community Bond Fund bailed them out. “From the jump, we’ve done this ‘inside-outside game’ organizing strategy,” said Matthew McLoughlin, an organizer with the Illinois Network for Pretrial Justice. “We never let the lawyers meet alone [without activists], and we never let the activists meet alone either.” A number of grassroots organizers found themselves entering the halls of power. Sharlyn Grace, who helped found the Chicago Community Bond Fund, was hired as a senior policy adviser in the Cook County public defender’s office. State Senator Robert Peters, one of the main sponsors of the Pretrial Fairness Act, started out as an organizer and was part of the Coalition to End Money Bond.
Members of the coalition also got a broad array of stakeholders to help craft the law, including groups advocating for victims of domestic violence. The members of The Network: Advocating Against Domestic Violence, a group of organizations that work to end gender-based violence, were “deeply dissatisfied” with the existing cash bail system, said Amanda Pyron, the group’s executive director. “There are a lot of people who can afford a very high bail and are very violent in their homes, and we knew those people were bailing themselves out and committing harm.” So her group worked to shape the legislation, seeing it as an opportunity not only to promote fairness but also to better protect survivors. It was particularly important to them that the new law would require that domestic violence victims be given notice of decisions to detain or release their abusers. Advocates also wanted the law to require prosecutors to seek detainment in one specific circumstance: when someone who had previously been charged with domestic violence violated an order of protection against the same victim. Now, with the law implemented, “it’s going great,” Pyron said. “I think it’s a best-case scenario.”
The coalition-building paid off. When the legislation was introduced in 2019, hundreds of people traveled to Springfield to lobby for it. But even after putting in all of that organizing work, advocates could never have anticipated what would prove to be the breakthrough moment: the nationwide protests in the summer of 2020 over the police killings of George Floyd and Breonna Taylor. The masses of people who took to the streets to demand racial justice didn’t shift the Overton window so much as “they threw a rock through it, and anything became possible,” McLoughlin said. “Fortunately, we were ready.” A groundbreaking bill made it through the state Legislature.
Even with the Overton window shattered, the coalition faced plenty of opposition. From the moment the Pretrial Fairness Act passed, “conservatives and law enforcement began spreading misinformation,” a report by the Illinois Network for Pretrial Justice found in 2022. The Will County state’s attorney said it would “literally be the end of days.” Some media outlets nicknamed it the “Purge Law,” invoking the 2013 horror film in which all crimes are sanctioned for a 12-hour period.
But advocates came to the fight prepared, having learned lessons from New York’s bail reform, which has faced rollback after rollback. One was the importance of timing the implementation: Instead of having it go into effect quickly, as in New York, the Pretrial Fairness Act would be implemented two years after its passage to allow everyone in the system to get used to the changes. Another was the need to go on the offensive quickly, communicating the details of the law to reporters, lawmakers, court actors, and the public at large. It helped that the message was simple: Wealth no longer determined who went to jail.
The coalition also “organized the hell out of the Illinois Legislature,” McLoughlin said, which paid dividends; the Democratic lawmakers who voted for the bill have stood by it, even as opponents of the law mounted a heavy PR campaign against it. Their support didn’t cost them politically: Democrats picked up seats in the election that followed. Pritzker beat a Republican opponent with 55 percent of the vote. “All those people who were running to defeat Democrats in 2022 got their butts handed to them while running on a tough-on-crime message,” Senator Peters noted.
Now that the law is in place, “it’s going dramatically better than any of us had expected it would be,” McLoughlin said. In Cook County, most people who are arrested are going free before trial. Because of the law’s provision for low-level offenses, many aren’t even required to go to court; 44 percent of people who were charged by police were given a citation and sent home. Across all arrests that resulted in court appearances, the prosecutor declined to ask for jail time in 82 percent of cases. Nearly all those charged with misdemeanors have been allowed to go home to await trial. All of this has translated to a 14 percent decline in the jail population in Cook County.
There are similar trends elsewhere. Researchers at Loyola University Chicago studied 89 counties in the state and found that of the 25,000 people whose charges made them eligible for detention, only about a third were sent to jail.
The number of people in Illinois jails has fallen by 1,888 since the bail reform went into effect, with a 14 percent decline in urban counties and a 25 percent decline in rural ones. Some areas have seen huge reductions in the number of people in jail, such as a 40 percent decline in Jackson County. But others have seen increases, possibly because with the elimination of bail, people can no longer pay their way out of jail. In Lake County, the jail population decreased from 686 people on September 18, 2023, to about 500 by January, but it has since climbed to over 600 in early September.
What hasn’t happened, contrary to predictions from the law’s opponents, is a massive crime spree. The state’s crime rate fell 11 percent between the six months before the act went into effect and the six months after. Only 12 percent of the people who have been released since the law went into effect have been charged with a new crime, and just 4 percent of that group were charged with a violent offense. Nearly all are showing up for their court appearances.
The hearings over whether someone should spend time in jail before a trial are now dramatically different. In 2017, I sat in a courtroom at the Orleans Parish Criminal District Court in New Orleans watching bail hearings. Those who had been arrested were dressed in orange jumpsuits and given all of three minutes to speak to a public defender about their case. Magistrate Judge Harry Cantrell moved rapidly through the cases, deciding about 20 in an hour. He set bail for every person who came before him, ranging from $2,500 to $30,000, with no explanation as to why. (In 2016, he told a defense attorney that he never sets bail lower than $2,500.) Public defenders were given little chance to object; defendants were barred from speaking at all.
Before the Pretrial Fairness Act went into effect, Cook County’s bond hearings weren’t much better than those I had witnessed in New Orleans; they used to take a matter of seconds. Now the median length of hearings in which the state is seeking to put someone in jail has quadrupled, Loyola researchers have found. I observed several detention hearings that lasted 15 minutes or more. Judges are giving far more consideration to factors like the strength of the evidence against defendants and are providing detailed explanations of their decisions.
On August 24, I went to a Cook County courtroom on the South Side of Chicago to observe detention hearings in the state’s most populous county. Just three cases were completed in the span of two hours. First, a 29-year-old Black woman with her arms crossed behind her back was led by a court officer into the bare, linoleum-floored room. She had been charged with carrying a gun for which she didn’t have a license in her waistband. The prosecutor argued in a monotone that she should be detained. But her defense attorney, an older man with glasses and a gray beard, responded that “she’s not going to be a danger to anybody else.” The woman didn’t do anything with the gun to put people in danger, and she had no history of violence and no prior convictions.
The judge agreed. The prosecutor’s evidence of her alleged crime was not strong enough, she said. The woman had allegedly been found with the gun at 4 am, and there was no one else around her, making her less of a danger to others. The judge decided that electronic monitoring would suffice, and she denied the state’s petition to put the woman in jail.
The next person didn’t fare as well. Three women, huddled on the wooden benches at the back of the court, refused a court officer’s invitation to stand up to show support for the defendant; “I’m too shy,” one said. Another pressed a cross hanging from her neck to her lips as she watched. They were there for a 19-year-old Latino with a faint mustache who was accused of possessing a gun without a license. He’d been riding in a car when it got pulled over by police for a passenger failing to wear a seatbelt. Officers claimed in their report to have seen and smelled marijuana and, after someone else in the car admitted to having it, instructed the occupants to step out of the car. The prosecutor said that the kid fled and that a loaded handgun fell from his pants. He was on probation for a prior conviction for aggravated assault with a weapon—a charge of inducing fear of bodily harm with a gun. The prosecutor argued that these factors made him a threat.
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The public defender argued that his client couldn’t be tied to the marijuana and that the prior conviction was his first. There was no other violence in his background, the lawyer pressed. The kid was still in high school, and his pretrial assessment—an algorithm that uses a defendant’s characteristics and past charges to produce a risk rating—recommended release, not jail.
But the judge found that he posed a threat to the community. He had allowed a loaded gun to fall to the ground on a Sunday evening near people who were “out and about,” showing “reckless disregard to the community.” She didn’t think anything short of jail would mitigate the threat, since he was given “a choice, a chance” with probation for the first offense but had violated it with the new one. The judge granted the petition to detain him, and he was led out to return to jail; the three women in the back were ushered out into the hallway by the court officer.
The judge was similarly unmoved in the case of a 28-year-old Black man with a goatee and long dreadlocks. The prosecutor recounted the story that officers had given: The man was talking on the phone and holding a backpack, and when he saw the police, he “quickly fled” into a store. After he walked out again without the phone and the backpack, the officers went in and opened the backpack, finding what appeared to be marijuana that was packaged to sell. Then they found the cell phone on a shelf and, near it, a gun. The defendant wasn’t supposed to have a gun, because he had previously been convicted of armed robbery, which made him “inherently dangerous,” the prosecutor said—in addition, the gun had been left in a public place.
His public defender mounted an energetic rebuttal. First, he said, saying his client had fled didn’t pass muster: “He has a right to walk into a store.” The officers never saw the man in possession of marijuana or a gun, and while he admitted the phone was his, he didn’t admit to owning the rest; nor were there any witnesses. Having a cell phone, he argued, didn’t make his client a threat.
Then the public defender laid out the stakes of holding the man in jail instead of releasing him. He was a single parent who lived with his mother. He had been working for two months at a warehouse. Staff in Cook County’s pretrial services office had interviewed the man extensively and recommended release, and “they are much more experts than I am,” the public defender said.
The judge was not convinced. She bought the officers’ story and found that the man’s criminal history and actions made him a danger to the community. And, she noted, he was on parole and had violated the conditions. That left her doubtful that he would comply with any requirements she gave him. He was told he would be sent back to jail.
Robust exchanges such as these didn’t exist before the Pretrial Fairness Act went into effect. Under Illinois’s old bail system, prosecutors never had to prove anything to seek egregiously high bail amounts; moreover, “no one ever acknowledged that they were trying to detain someone,” said Grace, the senior policy adviser for the Cook County public defender. Now detention hearings are “much more deliberative,” said Don Stemen, a codirector of the Center for Criminal Justice at Loyola University Chicago.
Variations in the process will remain, however. Some prosecutors seek detention in every eligible case, while others target only the ones they think they’ll win. In Lake County, just north of Chicago, State’s Attorney Eric Rinehart’s office has sought detention in 100 percent of cases that involve charges of armed violence, criminal sexual assault, armed robbery, home invasion, and child pornography, among others. That doesn’t mean judges always grant his requests. But Rinehart pointed out that under a cash-based system, 70 percent of the people charged with child pornography, for example, posted bail and were released, but now all are being detained. The new law is “going incredibly well,” he said, because “we’re holding more dangerous people.”
The outcome for each person also still depends on the individual judge who hears the case. But advocates agree that there is no indication so far that any judges are refusing to follow the law. In part, that’s because they’re now subject to a higher level of accountability. Previously, while people had the right to appeal an egregious bail amount, virtually no one exercised it; many feared that an angry judge would simply raise it even higher. Now they have the right to appeal both the judge’s decision to detain them and the conditions the judge placed on their release. That also puts a “check” on judges’ attempts to detain people for alleged crimes that aren’t eligible for detention, said David Olson, the other codirector of Loyola’s Center for Criminal Justice Research. And the appeal process is working: Out of 443 appeals that have been ruled on, most of which were over a judge’s decision to jail someone, the appellate judge reversed or vacated the initial decision in 105 cases.
As more people are released under the law, some advocates feared that judges would impose onerous pretrial conditions, such as forcing people to wear electronic monitoring devices or be confined to their homes. But that doesn’t appear to be happening. The number of people subject to electronic monitoring (GPS units attached to their ankles) in Cook County has fallen by nearly 20 percent since September 2023, and the number of people released with only supervision has grown by 47 percent. In the rest of the state, just 9 percent of people charged with crimes have been put on GPS monitoring. The law also requires judges to reconsider whether to keep someone on electronic monitoring every 60 days, and any time spent on it counts toward any potential future sentence.
But even less stringent conditions can still be a heavy burden to bear for someone with few resources. In a cramped, gray-carpeted courtroom about an hour west of Chicago in Kane County, Illinois, on August 28, a white man cuffed at the hands and waist, with curly blond hair reaching down his back and a chest-length beard, was accused of violating an order of protection. “You are presumed to be innocent of that charge,” Judge William Engerman, a gray-haired, clean-shaven man, told him. Engerman rattled off the man’s rights—the right to an attorney, the right to plead guilty or not guilty, the right to remain silent—and asked him if he understood. After a long pause, the man said no. Engerman slowly reiterated each point. When he was done, the prosecutor said the state wasn’t seeking to detain the man, even though the charge was eligible. “You are going to be released today on this case,” Engerman told him.
The state wasn’t done with him, though. The prosecutor laid out a number of conditions that the state wanted the man to follow: obeying the order of protection, not possessing a firearm or any other dangerous weapon, and getting a mental health evaluation and following its recommendations. His public defender quickly agreed to the terms. But as Engerman reviewed each requirement for the defendant, it became clear that it would be difficult for him to comply. He struggled to understand each stipulation. He asked if police would help him get back to court for his upcoming hearings; Engerman clarified that they would not. When the judge asked him if he knew where he would be staying, he replied no. He didn’t have a home.
After he was taken out of the room, a Spanish-speaking man and an interpreter were brought in. The man had been released the week before and told to get a SCRAM device, an ankle monitor that tests blood alcohol levels through the skin every 30 minutes. But he didn’t have it. “No tenía dinero,” he told Engerman: He hadn’t gotten paid yet and couldn’t afford the $250 to hook it up, plus the weekly fee. Engerman told him to come back in a week and a half to show the court that he had installed it. It was unclear what would happen if he didn’t have the device by then. The Pretrial Fairness Act stipulates that people can’t be put in jail because they can’t afford the conditions of their release, but Engerman wasn’t letting him off the hook.
The Kane County courthouse offers some services to make it easier for defendants like these two men to comply with pretrial conditions, such as free childcare at the court and a bus stop right outside. Such services can make a big difference. In Will County, people are returning to court with the help of things like reminders, one public defender told me. But some counties have few or no services at all for people who are released before their trials. This spring, Illinois legislators included in the state’s budget a law that will substantially expand services that help people comply with the conditions of their release, such as mental-health care, treatment for substance abuse, and funding for transportation and childcare so they can return to court.
Opponents are still looking for ways to dismantle the law, although no one, for now, is arguing for a return to cash bail. Their most likely move is to push to expand the number of crimes that are eligible for pretrial detention. The Illinois State’s Attorneys Association wrote a bill to make all charges detainable, said Ben Ruddell, staff attorney at the ACLU of Illinois, which is “a sneak preview into how this law is going to continue to be attacked.” At the same time, advocates for reform want to fight for more. While the Pretrial Fairness Act is a groundbreaking law, it touches only one cog in the vast machinery of criminal justice. It “does not eliminate the issues with policing. It doesn’t eliminate the issues with prosecutors’ charging decisions. It obviously doesn’t eliminate problems with judicial accountability,” Grace said. It allows counties to continue using risk-assessment tools, which defense attorneys make use of when they can but which have been found to be biased, as well as electronic monitoring. Now that they have helped pass the new law increasing funding for pretrial services, they’ve turned their attention to working on the Funded Advocacy and Independent Representation Act, which would establish a statewide public defense system while giving counties more attorneys and limiting their caseloads.
All of the advocates I spoke to who were involved in passing the Pretrial Fairness Act agreed that the open door that they walked through after the summer of 2020 is now closed around the country. But states are taking notice of what Illinois did. In August, Anna Hall, who runs the Pretrial Best Practices Project at the Minnesota Justice Research Center, observed Illinois courtrooms to gather information on pretrial reform at the behest of the Minnesota Legislature. McLoughlin, the organizer with the Illinois Network for Pretrial Justice, said the coalition has “been hit up by people all over the country” who are interested in the law. ACLU affiliates from other states, as well as other out-of-state organizations, have asked to “pick our brains,” Ruddell said, wanting to replicate Illinois’s success in their own states.
McLoughlin hopes that the Pretrial Fairness Act can prove to the rest of the country that “this is a very doable, replicable change,” he said. “I hope somebody gets to take the attention away from us soon.”
Bryce Covert
Bryce Covert is a contributing writer at The Nation and was a 2023 Reporter in Residence at Omidyar Network.
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