America's Broken Cash Bail System is Criminal Justice Gone Terribly Wrong

Across the country, legislators acknowledge that the bail bonds unfairly targets poor people and people of color. Now some states are taking steps to change.

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Feb 28 2018, 4:45pm

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In 2010, Kalief Browder was arrested by New York police for allegedly stealing a backpack. He was only 16-years-old, but that fateful night in the Bronx changed his life forever. He was charged with robbery, grand larceny, and assault, and because he was already on probation, the judge set his bail to $3,000—an amount his family couldn’t afford. Browder, who had not even been convicted of the crimes he was charged with, was sent to Rikers Island, where he waited three years, oftentimes in solitary confinement, for a trial. His case was finally dismissed a few days after he turned 20. But incarceration had taken a toll on the young man: He missed junior year of high school, the prom, senior year, and graduation. In 2015, Browder hanged himself. A year later, his mother died after suffering complications from a heart attack. Her attorney told media he believed "she literally died of a broken heart."

Browder’s was one of the most high-profile cases that revealed how broken the cash bail system, and to a larger degree, the country’s criminal justice system, are. According to a report from the Department of Justice, about 6-in-10 people sitting in jail in 2014 were not convicted, but actually awaiting trial; sadly, these statistics have been consistent since 2005.

Not only does the cash bail system unfairly target poor people, but it’s also deeply racialized, Marbre Stahly-Butts, co-director of Law for Black Lives, told VICE Impact. “It impacts black folks about twice the rate as it impacts white folks,” she said. “Black men are twice as likely to have a bond set on them, and the bond is often twice as high for the same crime.”

“This is a racial justice issue. This is a decriminalization issue. And it’s not just about tweaking the system: It’s about actually trying to transform it."

In the last couple of years, however, grassroots efforts to reform bail have picked up momentum—both in the work to abolish this practice and in campaigns that help get people out of jail.

On February 21, for example, Philadelphia District Attorney Larry Krasner announced he would no longer ask for monetary bail for people accused of low-level offenses. Earlier this month, lawmakers in Atlanta passed an ordinance eliminating the practice for low-level city ordinance violations and some misdemeanor charges. And, most notably, a federal judge in Houston declared the county’s cash bail system to be unconstitutional last year because it deprived impoverished people of due process.


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Meanwhile, on the state level, New Jersey abolished cash bail as of January 2017; Alaska’s revamped criminal justice system no longer relies on bail but rather a points-based system as of the first of the year; and New York Senate Democrats and Gov. Andrew Cuomo are pushing for bail reform this session.

Last year, the National Bail Out collective—comprised of several black, queer, and immigrant advocacy organizations, including Law for Black Lives—hosted the first ever National Black Mama’s Bail Out. The campaign sought to reunite with their families women who were locked up in jail because they couldn’t pay the fee to get out. (According to the Vera Institute of Justice, 80 percent of incarcerated women are mothers.)

Stahly-Butts said the Black Mama’s Bail Out, which came in time for Mother’s Day, was really meant to activate the people who are most impacted by these issues. And activate it did: More than 15,000 people gave over $1 million last year, she said, and upwards of 200 people were bailed out nationally, in addition to dozens more in local actions. Additionally, a portion of the funds raised have gone to supportive services, such as long-term housing, job training, and mental health intervention.

“It encourages people who are not guilty of crimes to plead to crimes they haven’t committed: Either they plea or they have to sit in jail, sometimes for years. [As a result] DAs and police are able to criminalize people without expending much resources."

“I think [the campaign] really changed the conversation in some ways,” Stahly-Butts said. “This is a racial justice issue. This is a decriminalization issue. And it’s not just about tweaking the system: It’s about actually trying to transform it. The groups who are most involved and invested in that are groups who are actually accountable to the bases of people who are impacted by the issue. Not stakeholders—not necessarily judges or DAs, although many of them are partners.”

While the immediate concern, of course, is to free people who remain in jail simply because they’re poor, Stahly-Butts pointed out that bail reform is “also a way to take a brick out of this mass criminalization kind of house that’s been built.”

Money bail, she explained, is the first entry point for a lot of folks into the prison system. “It encourages people who are not guilty of crimes to plead to crimes they haven’t committed: Either they plea or they have to sit in jail, sometimes for years. [As a result] DAs and police are able to criminalize people without expending much resources: Less than three percent of all cases go to trial in this country, and that’s largely because of the money bail system.” Doing away with it would demand a higher level of accountability from prosecutors and police, she said.

The bail outs also call attention to the fact that people are being locked up and criminalized for unaddressed societal problems. “A lot of folks that we’ve bailed out over the last year, over 80 percent have unstable housing; a number have had addiction issues that they definitely want folks to support them around; some have mental health issues; some just can’t find a job,” Stahly-Butts said. “But what we’re seeing I think that’s really symbolic of this entire system is that we—for the last few decades, if not centuries—have poured literally trillions of dollars into a system that cages people for homelessness, for poverty, for mental health issues, and for drug issues.”

“They’re our mothers and they’re our fathers and they’re our sisters and they’re our brothers and the people we love. They’re people who have value and dignity.”

“Instead of addressing those issues,” she continued, “we send people back to cages over and over again to make them worse off and make their communities worse off. It’s a long-term, perhaps decades-long, project to create a system that really reflects our humanity and reflects the actual problems that we’re facing ... but we feel like the bail fight is the beginning of that.”

While public education and advocacy work have been vital to the movement, having narratives out there about who cash bail impacts has also been incredibly powerful. Those are particularly visible in campaigns like the Black Mama’s Bail Out, and another that kicked off on February 14, the Black Love Bail Out. (In observance of Black History Month and International Women’s Month, advocates in Memphis, Philadelphia, Los Angeles, Alabama, and Texas are coordinating a concentrated effort to help more people stuck in jail because they cannot afford their bail.) A second Black Mama’s Bail Out is also in the works for May.

Campaigns like these have really “humanized the reality of our bail system,” Stahly-Butts said. “They’re our mothers and they’re our fathers and they’re our sisters and they’re our brothers and the people we love. They’re people who have value and dignity.”

“This system strips that from them,” she added.

In some cases, people’s lives are at stake. In 2015, Sandra Bland, 28, was arrested during a traffic stop. She was taken to a Texas jail, where she waited for her family to raise the $500 bond she needed to get out; like Kalief Browder, she couldn’t afford the fee. After three days behind bars, she was found hanging in her jail cell.

For more information on how you can contribute to a bail out, visit the National Bail Out . To host a bail out in your own city, contact the National Bail Out to access their toolkit, which offers a step-by-step guide on how to make that happen. Or donate to local efforts like the Brooklyn Community Bail Fund.