Kalief Browder was a 16-year-old arrested in New York City in 2012 on charges of stealing a backpack.  The charges were later dismissed, but not before he sat in jail on Rikers Island for three years – part of which was spent in solitary confinement – because he couldn’t afford to post $3,000 bail.  He committed suicide after his release, in 2015. 

Browder’s story was cited by U.S. Senators Kamala Harris and Rand Paul when announcing legislation they had jointly sponsored in July 2017. 

The Pretrial Integrity and Safety Act of 2017 (S.1593) would incentivize states with $10 million in grant funding over a three-year period to change or eliminate money bail by implementing “individualized, pretrial assessments with risk-based decision making.”  The bill is supported by more than 30 criminal justice organizations. 

Meanwhile, another reform effort is taking aim at the money bail system from a grassroots level.  Volunteers organizing themselves into community bail funds are raising money and pooling resources to post bond for those who cannot afford it.  Community bail funds have been established in New York, Chicago, Massachusetts, Connecticut and California, among other areas. [ See: PLN, June 2017, p.30]. 

According to the Prison Policy Initiative, approximately 443,000 people languished in jail awaiting trial as of the end of 2015.  That amounts to 70% of the national jail population.  Five out of six of those in jail “had bail set with financial conditions required for release that were not met,” the U.S. Bureau of Justice Statistics reported. 

Originally, bail was a process used by the justice system to facilitate the release of defendants who are presumed innocent until proven otherwise.  But there are often conditions for bail and, since the 20th century, those conditions have usually been monetary.  Courts grant freedom to criminal defendants awaiting trial in exchange for a fee, which ensures they will return to court or forfeit the bail money. 

Of the nearly half a million people in the United States held in jail because they haven’t posted bail – a disproportionate number of them minorities – there are hundreds of thousands being held on bonds of $500 or less. 

Blacks are overrepresented among those who cannot afford bail.  The Pretrial Justice Institute estimates that black men face 35 percent higher bonds than whites.  But regardless of race, the inability to afford bail can lead to the loss of jobs and housing – and sometimes the loss of life.  According to the Huffington Post, 815 people died in jails and police lockups in the year ending in July 2016. 

In a New York Times op-ed published concurrently with the announcement of their bail reform legislation, Senators Harris and Paul wrote: “Excessive bail disproportionately harms people from low-income communities and communities of color.  The Supreme Court ruled in Bearden v. Georgia in 1983 that the Constitution prohibits ‘punishing a person for his poverty,’ but that’s exactly what this does.  Nine out of 10 defendants who are detained cannot afford to post bail, which can exceed $20,000 even for minor crimes like stealing $105 in clothing.” 

The ACLU has come out in support of their bill, calling it “imperfect” but also “progress” toward addressing larger problems with the money bail system.  Those associated with community bail fund efforts also generally acknowledge that posting bond for those who cannot afford it is an imperfect, stopgap solution to a much larger problem. 

“If we are really serious about the presumption of innocence, which is not a radical concept, then we need to take a critical look at cash bond and pretrial detention across the board,” said Max Suchan, co-founder of the Chicago Community Bond Fund (CCBF). “ The solution is to end cash bond and eliminate pretrial detention.” 

Scott Hechinger of the Brooklyn Community Bail Fund, who is also a public defender with the Brooklyn Defender Services, echoed that sentiment. 

“This is not a long-term strategy,” he said. “ This is not a solution to the problem of bail.  The bail fund is a short-term intervention to an urgent need.” 

For those who cannot afford to post bond, the consequences are real, irreversible and often tragic. “ Inability to pay bond results in higher rates of conviction, longer sentences, loss of housing and jobs, separation of families and lost custody of children,” the CCBF noted in its first annual report. 

Further, the longer someone sits in jail, the more likely he or she is to plead guilty.  Defendants who can’t afford bail face an enormous temptation to plead guilty, even if they are innocent, because “there is nothing as powerful as the desire to go home,” Hechinger said. 

According to 2013 data provided by the Brooklyn Defender Services, 88 percent of defendants released from jail had their cases resolved without a conviction, compared to only 38 percent of those who remained in pretrial detention. 

Agreeing that simply posting bond for those unable to afford it is not the solution to the money bail crisis, Cherise Fanno Burdeen, executive director of the Pretrial Justice Initiative, wondered if bail funds may “prevent the system from actually addressing” fairness concerns “because they have this Band-Aid holding things together.” 

Brett Davidson, director of the Connecticut Bail Fund sees things from a more practical perspective. 

“We’re first and foremost interested in keeping clients out of jail,” he stated. “ It’s ridiculous that we’re even able to buy people’s freedom, that money is the thing standing between people and jail.” 

In a paper published in the Michigan Law Review in March 2017, Jocelyn Simonson, an assistant professor at Brooklyn Law School, argued that the trend of community groups using funds to post bail for strangers who can’t do so themselves has the potential to force real change in how our justice system views the constitutionality of money bail and its future use. 

When community bail funds get involved, Simonson argued, the act of posting bond “becomes a form of on-the-ground resistance to the workings of the criminal justice system.”  Simonson called this “bail nullification,” equating community bail funds with the act of jury nullification – when jurors choose to acquit a defendant who is legally guilty to make a point about the legitimacy of the law or a larger injustice within the system. 

“[B]y paying money bail for defendants who cannot afford it, community bail funds highlight the extent to which the system of money bail ties a defendant’s economic status to the outcome of her case – an insight that implicates the Equal Protection Clause,” Simonson wrote. 

“The bail is really being set to keep the person in custody.  You have to kind of concede that,” Fresno County, California Superior Court Judge W. Kent Hamlin told the New York Times in 2015. “ It’s not supposed to be that; it’s supposed to guarantee their appearance in court.  They’re innocent until proven guilty, but the bail system assumes they’re guilty.” 

While community bail funds have long existed in informal formats, such as church collections or crowdfunding, it’s only in the last five years that they have organized and proliferated.  The Bronx Freedom Fund has been replicated in Massachusetts, Connecticut, Brooklyn and Nashville, and funds targeting specific groups have cropped up elsewhere.  For example, the Baltimore Protesters Bail Bond Fund posts bail for those arrested while protesting violence; there are similar funds in Oakland, California and Baton Rouge, Louisiana.  One fund in Queens, New York helps transgender women of color. 

The success of community bail funds – over 90 percent of participants return to court – undermines the original justification for money bail: that only an economic threat is enough of an incentive to ensure someone will show up in court.  Unlike jury nullification, in which juror deliberations are kept secret, community bail funds are open about their mission to transform the criminal justice system, and thus can have a greater effect beyond individual cases. 

The Pretrial Integrity and Safety Act of 2017 was referred to the Senate Committee on the Judiciary on July 20, 2017.  A companion bill in the House, H.R.4019, remains pending in a subcommittee.