Ebony* had been in an Atlanta jail for two weeks when one May evening, just before Mother’s Day, she got an unexpected visit from an attorney with good news: Someone had found her name through an open records request and wanted to pay the $1,000 bail that was keeping her locked up until a court date for driving with an expired license. While she was out on bail, the 45-year-old mother and grandmother went to court and paid the $250 fine for a delay in addressing a three-year-old ticket.
Today, Ebony still marvels at the idea of strangers getting her out of jail. “It was so random and so unheard of for such a thing to happen. I was just thankful.”
Though it may have seemed a random stroke of good luck to those on the receiving end, the Mama’s Day Bailout was the product of careful, strategic planning on the part of organizations such as Southerners On New Ground (SONG), which coordinated the Atlanta bail out, and other social justice organizations nationwide including Essie Justice Group in California and Texas Organizing Project. These groups covered bail for 120 people in May and another three dozen in June and July timed to events such as Father’s Day, Juneteenth and Pride. The campaign, fueled by the Movement for Black Lives [PDF] raised more than $1 million for the direct actions and brought new energy to the decades-old struggle to end cash bail. In August, SONG bailed out 36 Black people across the South, and a spokesperson there said the group expects actions to continue this week in Richmond and New Orleans.
But the bailouts are part of a larger constellation of activity that includes policy reform efforts at the federal, state and local levels as well as lawsuits challenging the criminalization of poverty in jurisdictions as small as Jennings, Missouri, and as large as Houston, Texas. Meanwhile, drug warrior Jeff Sessions heads the U.S. Department of Justice and supports a return to tough-on-crime policies more in sync with what many considered to be a bygone era. Despite the current administration and a bail bonds industry hell bent on squashing attempts at reform, leaders within the movement to end cash bail are hopeful. “As people are looking for ways to impact mass incarceration, bail has become a space that feels attainable,” says Scott Roberts, who directs criminal justice work at Color Of Change. “What we’re seeing is really a shift in how the community feels about it. People are fed up and this feels like a place where we can get change.”
Bail has become a focal point in the fight to transform the criminal justice system for several reasons. First, more Americans experience jails, which typically hold people pretrial or for sentences less than a year, than prisons, to which people are sentenced for longer terms. The number of people annually admitted to jails nationwide is nearly 20 times annual admissions to state and federal prisons, according to a Vera Institute report. Second, and perhaps most compelling, the majority of people in jails haven’t even been found guilty of a crime. Three out of five people in jail are there simply because they can’t afford to pay bail. “If you want to tackle mass incarceration, you have to go to where mass incarceration is happening,” says Cherise Fanno Burdeen, CEO of the Pretrial Justice Initiative. “This is where the most disruptive action of the state happens in people’s lives.”
The highly publicized deaths of Kalief Browder in New York and Sandra Bland in Texas illustrated that while the disruptions caused by pretrial detention most often cost low-income people their jobs, homes or relationships, it can also cost them their lives. Tragic stories such as these have helped steer the national conversation and bolstered the case for ending bail.
From Mass Movement to Reform
Thomas Harvey, who directs the non-profit law firm ArchCity Defenders, is challenging the interrelated system of bail and traffic fines and fees that put people behind bars—what he calls the criminalization of poverty and race—through a series of lawsuits in St. Louis County, Missouri. Just fewer than 1 million people live in the county’s 90 towns, 81 of which have their own police forces and part-time courts. Harvey and his colleagues have sued 30 of those towns, including Ferguson, using class action suits to challenge their use of bail and their operation of what Harvey calls debtors’ prisons. “At least in the St. Louis region, it’s poor folks and communities of color that are being held on cash bail,” Harvey says. “Courts are quicker to impose these onerous consequences on them.” (This is true nationwide as well. Black Americans are 2.5 times more likely to be arrested and almost four times more likely [PDF] to be jailed than White Americans.
Harvey’s group has reached settlements with the cities of Jennings, Velda City and St. Ann. Last year, Jennings agreed to pay $4.7 million in compensation to people detained for court debts and also signed on to a set of reforms including ending cash bail in favor of releasing those accused of nonviolent offenses on their own recognizance. Under the new system, the court employs a five-step process before issuing a warrant for someone’s arrest for failure to appear in court, Harvey says.
These wins and others like them in recent years have occurred in small municipalities throughout the Midwest and South, where there’s often a lack of training and professionalism on the part of court officials, says Harvey. Attorneys involved in these cases and specializing in bail reform litigation, such as those at Civil Rights Corps and Equal Justice Under Law, are now taking on big cities, including Houston and Chicago.
Mass movement has created a context that makes reform more possible. “In St. Louis after Mike Brown was murdered and people were in the streets for 365 days, public officials were looking for ways to give an olive branch,” Harvey says. “If you look around at the states where there has been success, where you didn’t have to drag out the legal case over years and years, you see places that preemptively began to adopt reforms.”
Even at the federal level, public officials are following advocates’ and activists’ lead. In July, Sens. Kamala Harris (D-Calif.) and Rand Paul (R-Ky.) introduced federal legislation that would give states U.S. Department of Justice grants to “reform or replace the bail system.” In announcing their bill, the progressive Californian and the libertarian Kentuckian pointed to states where reform is already underway. New Jersey’s legislature passed reform in 2014 and the new system went into effect in January. The state’s jail population is down 20 percent since the start of the year and down 35 percent compared to June 2015, according to a new report [PDF] from the Administrative Office of the Court. New Jersey’s reform, like other jurisdictions’, depends on judges’ use of a risk assessment tool to decide who gets out of jail pretrial. (More on that in a bit.)
State legislators pushing for reform also point to New Jersey and Washington, D.C., which has long deprioritized cash bail. California State Sen. Robert Hertzberg, who co-authored [[a bail reform bill now moving through that state’s legislature used New Jersey’s numbers to make his case during a July 11 committee hearing. That day, various state and national social justice organizations showed their support for SB 10, including representatives from Lawyers Committee for Civil Rights, SEIU, Legal Services for Prisoners with Children, Courage Campaign and the ACLU of California. When it came time for the opposition to speak, one bail bonds agent after another expressed their disapproval. “I will be chasing fugitives for ever and ever, amen,” promised someone from Lipstick Bail Bonds. “There’s no need to eliminate the bail industry,” another bail agent said.
A desire to expose the industry’s coordinated effort to kill reform led Color Of Change and the ACLU to release “Selling Off Our Freedom” [PDF] earlier this year. The report challenges the $2 billion bail industry’s practice of charging a nonrefundable fee (typically 10 percent) in exchange for posting bail for someone accused of a crime. It also highlights that the U.S. and the Philippines are the only countries that allow for-profit companies to play a role in decisions regarding pretrial release. The practice may be uniquely mercenary compared to the rest of the globe, but Color Of Change’s Roberts has found that likely allies in the fight to end bail have been slow to hold the industry accountable. “Even in our own communities, bail bondsmen have a reputation of being someone who’s helpful,” he said.
In Maryland, the industry has invested tens of thousands of dollars in recent years to kill bail reform legislation, then advanced its own bill that would have reversed a Maryland Court of Appeals rule change that encourages judges and court commissioners to avoid using bail. Too many Maryland legislators with large Black constituencies have been on the wrong side of the issue, Roberts says. In July, Color Of Change played host to a bail reform forum in Prince George’s County, Md., the wealthiest majority-black county in the nation. “We saw black P.G. County-based legislators voting against bail reform and then backing the industry’s bill,” he said, explaining why his organization is educating the public there. “We need to make a strategic intervention in these communities.”
How Did We Get Here?
The buzz around bail, from conversations about it in Southern Black Baptist churches to campaigns to free Black mothers, might indicate that this is a new movement. But the fight dates back five decades to Attorney General Robert Kennedy’s convening of the first-ever National Conference on Bail and Criminal Justice in 1964 and the passage of the Bail Reform Act two years later, which expanded the practice of releasing defendants on their own recognizance. Burdeen of the Pretrial Justice Institute said we’re now in the third generation of bail reform, the start of which she places in 2011 when Attorney General Eric Holder addressed the National Symposium on Pretrial Justice and expressed his support for jurisdictions seeking alternatives to bail. Burdeen, whose organization serves as a clearinghouse for advocates, legislators and litigators working on reform, said what’s new about this moment is the pressure activists are putting on legislators and the criminal justice establishment to make change. “This wave of reform is really an uptick in activity among the general public and the advocacy community,” she said.
The election of Donald Trump has done little to dampen this activity. If anything, it’s invigorated the movement and emboldened state and local elected officials to continue down a path of reform, according to advocates I spoke with. And while Holder used his platform to encourage change, the Department of Justice didn’t devote the resources jurisdictions need to make real change. That’s where philanthropy has stepped in.
Algorithmic Pitfalls and Other Racially Blind Solutions
Last year, the MacArthur Foundation awarded nearly $25 million to 20 jurisdictions working on reducing their jail populations. Philadelphia, which has the highest incarceration rate of any big city nationwide, received $3.5 million to support reform. A portion of those funds is being used to develop a predictive risk algorithm to help judges decide who should be detained pretrial and who poses no real threat to the community and so should be released. Such risk assessment tools – often described as “data-driven” or “evidence-based” by their proponents—have been a key factor in bail reform in New Jersey, Kentucky, Arizona and in dozens of counties nationwide. The tools comb administrative records to determine a defendant’s likelihood to be rearrested or to fail to reappear for a court date. They collect data such as age at first arrest, whether a person has prior misdemeanor or felony convictions, a history of drug abuse or has been incarcerated previously. But a focus on these aspects of someone’s life has the potential to replicate the same problems we currently see with cash bail, some advocates said. Namely, it will unnecessarily keep a disproportionate number of Black people behind bars.
This is Philadelphia organizer Josh Glenn’s concern. Reliance on algorithms overlooks racism embedded in police practice and the criminal justice system more broadly, he said, echoing the findings of recent reporting and research. The 29-year-old said he’s been stopped and frisked more than 1,000 times, and that’s because he grew up Black and poor in aggressively policed West Philadelphia, not because he’s a criminal.
Glenn was locked up at age 16 on an aggravated assault charge. He maintained his innocence but didn’t have the $2,000 he needed to make bail. He served 18 months in jail before a judge dismissed his case. He’s part of a group of Philadelphians working to make sure that people who have actually served time are at the table during implementation of the MacArthur grant. He’s not optimistic about the use of algorithms as the path to ending cash bail. “You’re not interviewing folks as a human being and seeing somebody’s needs,” Glenn said. “You’re using a tool that targets certain people from certain areas. It’s still going to be racist. It’s still going to pick out certain people from certain zip codes.”
His emphasis on understanding and meeting a defendant’s needs came up again and again during conversations with activists pushing to end cash bail. Many speak of shifting the frame from “risk assessment” to “needs assessment” in order to appropriately deal with questions of recidivism and alternatives to jail. In a collectively authored document that SONG sent to its network titled, “10 Lessons Learned From the Black Mamas Bail Out Actions,” members who participated in bailouts wrote: “Locally, our crews were not prepared nor had the relationships in place to connect those we were bailing out to all they immediately needed… In this action, some of our most heartbreaking moments were women telling us that staying in jail was their only survivable option versus dying on the outside.” From Georgia, to Florida and Texas, organizers who led actions are now helping those who have been bailed out find housing, drug treatment programs and other services, says Mary Hooks, who directs SONG and was an architect of the Mother’s Day campaign.
Strengthening the social safety net or stopping police from arresting and fining people for crimes related to their poverty falls outside the scope of the bail reform movement that’s gaining momentum now. But Marbre Stahly-Butts, partnership director at Law for Black Lives, said meaningful reform depends on pulling money out of incarceration in its various forms and pouring it instead into housing, mental health, jobs and education.“There’s a real risk that those moral imperatives won’t translate into the legislation that we’re passing,” Stahly-Butts says. “Ending money bail is the tip of the iceberg in terms of what we want to see.”
Dani McClain reports on race, reproductive health, policy and politics. She is a fellow with The Nation Institute and a contributing writer at The Nation.
*Interviewee’s surname is omitted to protect her privacy