Every day in this country, hundreds of thousands of legally innocent people sit behind bars simply because they cannot afford bail. While many aspects of the American justice system are rigged to favor the rich, the inequality of the cash-bail system is especially glaring. Despite the Eighth Amendment’s explicit stipulation that “excessive bail shall not be required,” the national median felony bail is $10,000, an astronomical sum when you consider that almost half of the American population does not have $400 on hand.
Under the existing cash bail system, judges set bail amounts intended to ensure defendants return to court for their trials, when the money will be returned to whomever made the payment. To purchase their freedom, people who cannot afford their bail often take out a bail bond. The most common form of bail payment in America, bail bonds come with nonrefundable premiums, usually set at 10 percent of the bail amount, which are not repaid even after the court has returned the bail money to the bondsman. That means that while the wealthy are reimbursed once their cases are resolved, the poor lose a portion of their limited funds permanently.
Because bails are set so high, defendants often pay bail bondsmen on monthly installment plans that charge interest, entrapping defendants in fees that follow them for years after their cases are resolved. The for-profit bail industry, comprised of bail bondsmen and insurance companies who underwrite them, collects annual revenues of over $2 billion.
The crisis of mass incarceration in this country is fueled by cash bail: 95 percent of the growth in the jail population between 2000 and 2014 was in pretrial detention, or the jailing of people awaiting trial. People who want to get out of jail but cannot afford their bail amounts are more likely to take plea deals and defendants held pretrial are 3 times more likely to receive prison sentences.
The burden of cash bail falls disproportionately on communities of color. A Pretrial Justice Institute study found that simply being black increases your odds of being held on bail by 25 percent, and another study found that bails are set 35 percent higher for black men and 19 percent higher for latino men than for white men. In New Orleans, black people paid 84 percent of the city’s total bail surcharges in 2015.
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Most Americans reject such a blatantly unequal system. Recent polls found that 78 percent of Americans think the current system favors the wealthy, 57 percent believe individuals should not be incarcerated purely because they cannot afford their bail amounts, and 45 percent would like the current system replaced with a holistic pretrial assessment. The world agrees—for-profit bail is a legally accepted practice in only one other country: the Philippines.
Thanks to years of tireless activism from grassroots community organizations, the unjust scaffolding of cash bail is beginning to be deconstructed, hopefully moving the country towards a radical reimagining of the criminal justice system at large. In the senate, Bernie Sanders has brought a bill to end cash bail to the floor, and this summer Senators Cory Booker and Sherrod Brown sent an open letter to insurance companies demanding information about the “unfair and exploitative” bail bonds they underwrite. Many states have begun to reform or outlaw cash bail, and lawsuits have successfully challenged money bail practices in Mississippi, Texas, Florida, and Louisiana, among other states.
Here are five ways you can join the movement:
1. Donate to a bail fund.
Bail funds, which raise money to pay bail for accused community members who cannot afford their bail amounts, are part of a longstanding tradition of resource pooling in low income communities. As the issue of money bail has gained prominence, a rash of local, and some national, funds have sprung up. This direct aid works; in New York, bail fund clients are twice as likely to win their cases as incarcerated individuals and they also show up for 95% of their court appearances. Once a case is resolved, the courts must return the bail money to the fund, where it can be used to pay another person’s bail. This revolving model means that your money does not just pay one person’s bail, but can flow cyclically through the fund to free more individuals.
The Bail Project. The Bail Project is a national fund disrupting the cash bail system by paying bail for people who cannot afford it, and gathering and publicizing data on the inequality of the cash bail system in the process. The Bail Project is currently in the midst of a five year national expansion plan, with the goal of bailing out over 1,000 people per year in forty high-need jurisdictions.
National Bail Out. Initially founded ahead of Mother’s Day 2017 as “Black Mamas Bail Out” to free incarcerated mothers in time for the holiday, the Black Love Bailout has grown into a 20-organization collective that coordinates bailouts in honor of Father’s Day, Juneteenth, and Pride. In 2018, the movement coordinated a Black Love Bail Out in honor of Black History Month and Women’s History Month. One of the movement’s key organizer, Arissa Hall, told The Appeal that she intends to highlight how “Black women are affected and impacted by the criminal justice system” in response to the fact that the black male experience often dominates larger conversations surrounding mass incarceration. National Bail Out has also built a downloadable toolkit instructing communities without a local bail fund on how to start their own.
Brooklyn Community Bail Fund. The Brooklyn Community Bail Fund works in partnership with all the legal aid providers in Brooklyn, Manhattan, and Staten Island along with reentry specialists and social service workers to not only free people incarcerated pretrial who could not otherwise afford their bails, but also to ensure that they are able to navigate the web of trial and post-trial challenges that await them once freed. Donate here.
In 2016, The Brooklyn Fund founded the National Bail Fund Network to connect local funds across America. The Network links activists, donors, and legal aid groups across the country, fostering the radical potential of coordinated campaigns to end money bail. It also includes bonds for people held in immigration detention. Find a local fund near you in their directory here.
2. Become a court watcher.
The Court Watching movement sends citizens into courtrooms to document unfair practices, such as bails set impossibly high or sentencing differentials by race. By observing arraignment courts across the country and publicizing their findings, court watchers hold district attorneys, judges, and local officials accountable to their citizens. In New York, for instance, progressive DAs in Manhattan and Brooklyn were elected on promises not to prosecute crimes of poverty, and court watchers have been publicly shaming assistant district attorneys who do not follow these edicts. In Chicago, court watchers have been publicizing the failure of Çook County’s Chief Judge to enforce a year old executive order requiring judges to consider affordability when setting bail. Court Watchers foster a culture of transparency from the legal system and the experience often galvanizes activists to organize for more radical reform.
The oldest court watching organization focusing on mass incarceration and specifically cash bail is Court Watch NOLA in New Orleans. The organization releases annual reports on the racial and economic sentencing disparities its watchers record. In New York, Court Watch NYC was founded in February by the Brooklyn Community Bail Fund, 5 Boro Defenders, and VOCAL-NY with the goal of serving as “the eyes and ears of accountability in New York City courtrooms,” and has already grown to over 300 observes who have watched over 500 cases (Their next training session is on November 3, and you can sign up here). Court watching groups are also active in Chicago, Philadelphia, and Boston. If your city does not have a court watching group yet, use this guide from the Pretrial Justice Institute to start your own.
3. Educate yourself and others.
The prevalence of cash bail varies widely between states, and average bails set by different individual judges can vary dramatically. As John Nichols recently highlighted, state attorneys general have the power to put criminal justice reform on the judicial agenda. Find out how your state ranks in pretrial justice by checking out PJI’s state-by-state report card, which gives each state a grade based on their rate of unconvicted people incarcerated, the percentage of their county’s population where courts use evidenced-based pretrial assessments, and the percentage of their county’s population without for-profit bail.
You can also learn more about pretrial justice by joining The University of Pretrial, PJI’s online forum for training and community building for burgeoning activists. UP already has approximately 2,000 members, who can access a multitude of online modules and downloadable resources on relevant statistics, the wave of court cases challenging the practice, and pending reform proposals.
4. Contact your officials.
Write, call, and tweet at your lawmakers on the federal and local levels, urging them to support legislation reforming cash bail.
Federal: Tell your senators and congresspeople to support Bernie Sanders’ No Money Bail Act, which would outlaw the practice of cash bail for federal crimes, offer grants to states pursuing alternatives to cash bail, and demand states carry out studies to ensure replacement systems do not replicate existing inequalities.
State: You can also ask your state officials to support the 3DaysCount campaign for common sense pretrial reform. Named to reflect the mere three days in jail it takes to increase defendants’ chances of negative case outcomes, recidivism, and loss of jobs and housing, the proposal recommends pretrial risk assessments in lieu of money bail through changes to state statutes, court rules, and state constitutions. In 2017 alone, Connecticut and Washington joined the movement, with Connecticut passing a pretrial reform bill the same year. As you advocate, it’s important to note that not all pretrial reforms improve outcomes for marginalized communities, as California’s recent transition from cash bail to to a combination of algorithmic risk assessment with judicial oversight demonstrates.
Local: Tell your county officials to implement the National Association of Black County Officials’ resolution on pretrial justice reform, which calls on counties to support “evidence-based locally validated pretrial assessment,” eliminate for-profit bail bonds, and promote implicit bias training for local judges. Recognizing the shocking level of inequality in the current system is integral to any reform effort, so ask your county officials to collect bail sentencing data through joining efforts like Measures for Justice.
5. Vote!
Vote for candidates who want to dismantle the two-tiered justice system by abolishing cash bail. The bail bond industry donates profusely to politicians it can enlist to block reform efforts, and last year was their biggest off-cycle spending year yet. Check out followthemoney.org’s list of House and Senate candidates to see if candidates in your state are indebted to the bail lobby. Local races are also key; find out where your candidates for DA, judge, and county positions stand on reforming cash bail in your community. Then vote out politicians funded by the bail industry in favor of changemakers who want to build a more equal society, where freedom cannot be bought.
