As a consensus grows nationwide that America’s criminal-justice system needs an overhaul, momentum is building to end one of its most pernicious elements: money bail.
Money bail is a court’s demand that someone charged with a crime pay in order to go free before trial proceedings, despite the presumption of innocence, as a means of ensuring that the person comes back to court. This practice results in a two-tiered system, in which people who cannot afford to pay bail remain locked up, while those with money are able to go free. One study found that the median national bond amount of $10,000 equaled eight months of income for the average person detained pretrial (and only slightly less than the annual income of detained women.)
The practice also exacerbates racial inequities endemic to the criminal-justice system. African-American men face bail amounts that are 35 percent higher, and Latino men 19 percent higher, than those of white men.
On any given day, two-thirds of the 740,000 people held in jail have not been convicted of a crime. A majority of them are there because they cannot afford to pay the bail fees that would at least temporarily restore their freedom.
People detained ahead of their trial face many types of harm — they are more likely to be convicted and to receive a lengthier sentence than those who remain free pending trial. According to the Bail Project, people who spend even short stays in jail also risk losing their jobs, homes, and custody of their children; for immigrants, their legal status can be jeopardized. Some also suffer physical and mental harm and sexual victimization during incarceration.
Community organizing, policy advocacy, celebrity attention, and efforts supported by America’s foundations have helped turn the tide.
In April, New York eliminated money bail for most misdemeanors and low-level felonies. Across the country, 200 bail-overhaul measures are pending, and lawsuits challenging the constitutionality of money bail are placing pressure on systems to change. Celebrities like John Legend and his Free America campaign, and NFL athletes through the Players Coalition, have also focused attention on the cause.
Even so, a powerful force that could ensure more victories has too often been ignored by philanthropy. That’s why today Borealis Philanthropy is announcing $1.7 million in awards through a new donor collaborative, the Spark Justice Fund, to eight grassroots groups. They are pushing not only to end money bail but also to advance other ideas to curb the number of people who are incarcerated, such as decriminalizing some offenses and requiring pretrial release in certain cases.
We have seen what groups like this can accomplish.
Campaigns led by people on the frontlines have propelled the bail issue into the national discourse. Black Mama’s Bail Out, an annual event started in 2017 by the National Bail Out collective to pay fees to release black mothers and bring an end to the unjust system of money bail, has gained widespread media coverage.
Organizers are using innovative approaches to hold prosecutors and other key figures in the judicial system accountable for carrying out changes to the bail system, like no longer seeking money bail for the majority of offenses and refusing to prosecute many low-level offenses altogether. Community groups are sending monitors into courts to document what happens in individual cases and identify unjust practices, in an effort to pressure prosecutors, judges, and others to change.
And organizations like Silicon Valley De-Bug and Law for Black Lives are experimenting with new approaches outside the courtroom. For example, organizers work with family and community members to provide information about charged individuals to the court to help make the case for their release before trial.
More Than Storytellers
People who are incarcerated or have been, along with those who have friends and relatives in prison, have often been asked to share their stories with legislators, reporters, and others. But they have much more to offer.
During the time that they are imprisoned, some people think about how to make sure that no one else faces the harms they have suffered. This has led to invaluable insights on the criminal-justice system and on needs in their communities — the type of expertise that is necessary to develop a transformative vision of justice, to identify policy changes that advance such a vision, and to build smart, strategic campaigns to win change.
Community-led groups also ensure that after policy victories, government officials carry out new approaches properly, long after lawmakers, the news media, and others have shifted their attention elsewhere.
What’s more, no one is better equipped to assess how seemingly promising policy proposals will play out in practice — and whom those policies leave behind — than those who have lived through the bail system. It is their leadership, which often goes unsung, that will continue to propel change. Such leaders are developing innovative solutions that will eventually advance justice and equity.
Mobilizing People on the Front Lines
The new grants through the Spark Justice Fund, provided by the Art for Justice Fund, the Ford Foundation, Galaxy Gives, Heising-Simons Foundation, the John D. and Catherine T. MacArthur Foundation, the NoVo Foundation, the Open Society Foundations, and an anonymous donor, are designed to harness the power of organizing groups on the front lines.
To help create policy proposals, the grantees reach out to people who have been incarcerated or otherwise affected by bail. For example, Southerners on New Ground, an organizer of Black Mama’s Bail Out, is mobilizing members across the South to end money bail and to demand that municipalities stop spending tax dollars on jails and other punitive institutions, and instead spend more on community-based solutions, such as programs that match people facing criminal charges with services that would help ensure that they show up for court appearances.
Another grantee, Free Hearts, an organization in Nashville led by formerly incarcerated women, has surveyed women in jail about their bail amounts and ability to pay. It has reached out to people who previously served prison time as they map resources that can be used as alternatives to bail, pretrial detention, and sentencing. These tactics have informed the group’s policy goals: After three years, it helped pass legislation in Tennessee requiring judges to consider community-based alternatives to incarceration in sentencing for primary caregivers, such as drug rehabilitation, counseling, and education.
In addition, Action St. Louis was recently featured on the BET series Finding Justice for its Close the Workhouse campaign, which calls for the closure of a medium-security jail with inhumane conditions that critics say violate the constitutional rights of the people incarcerated there. Founded in 2014 after the killing of Michael Brown in Ferguson, Mo., the group advocates for policies that people who have been jailed say would be important changes in the justice system: closing jails and reinvesting in resources that would improve community well-being and safety, like education and mental-health care.
In May 2017, Action St. Louis joined with the Movement for Black Lives to bail out 10 black mothers as a part of the national Black Mama’s Bail Out. Most of those women had been held at St. Louis’s Medium Security Institution, known as the Workhouse. Organizers found that more than 90 percent of people incarcerated at the Workhouse are there because of their inability to afford cash bail.
The organizers received calls from incarcerated people about the dangerous conditions there — mold, rodent infestations, extreme heat and cold, lack of medical care.
The vision of the campaign is not only to end money bail and close the jail, but also to redirect public-safety resources toward community well-being, like increased affordable housing, job-retraining programs for people incarcerated at the Workhouse, and neighborhood-based community services.
That kind of effort is the direct result of the experience of people who have been in prison or have seen their loved ones incarcerated. They identify a problem, like inhumane jail conditions, and shape solutions. Their work also prompts activists to pressure local authorities to reduce the number of people who are in jail to begin with.
More philanthropic investments in the bold and innovative leadership of the people most harmed by the criminal-justice system can help communities build power so they can win this fight. More such victories will improve lives and secure justice and equity.
Katayoon Majd is director of criminal-justice reform initiatives at Borealis Philanthropy, where Jennel (Puzzle) Nesbitt is program associate.
