On any given night in America, around 450,000 people spend the night in jail despite not having been convicted of a crime. They have been arrested, charged and held on bail, something that would mean release pending trial for a wealthier person in their position. But because they cannot afford to pay their bail, they remain in jail instead.
Many will eventually plead guilty without a chance to have their day in court, because the other option is remaining in jail until their trial date, which could be years in the future. While cash bail is intended to give people charged with a crime an incentive to appear in court, it often results in a lack of ability to defend themselves.
Inability to afford bail is a problem that mostly impacts low-income people, and disproportionately people of color.
One organization, the Bail Project, is aiming to change that and make the legal presumption of innocence a reality for everyone. The New York-based organization is beginning its effort to go nationwide with a new branch in St. Louis.
The Bail Project was founded 10 years ago as a small legal fund, the Bronx Freedom Fund. It has a novel organizational model, called a revolving fund. The Freedom Fund pays the bail of incarcerated people in New York using donated funds. Then, when those people make their court dates, they receive the bail deposit and the money goes back into the fund. According to the Bail Project, the same money can be used to pay bail for two to three people per year.
Throughout its history, the Bail Project has found that most people return to their court dates even if the money they pay bail with is not theirs, according to a spokesman. They have also found that paying bail for incarcerated people increases the odds they will be able to successfully defend themselves in court.
The co-founder (with David Feige) of the Bronx Freedom Fund, Robin Steinberg, is now taking that approach nationwide with the launch of the Bail Project, a new national organization. Its first two offices outside of New York will be in St. Louis and in Tulsa, Oklahoma.
Thomas Harvey, the cofounder and longtime leader of St. Louis civil right law firm ArchCity Defenders, recently left ArchCity and began working with the Bail Project.
“We’re really looking to build on the work that folks had already started in St. Louis,” Harvey said.
One of those people is Michelle Higgins, who has participated in two previous mass bailout actions in St. Louis and has now joined the Bail Project as a “bail disruptor.”
“My hope is that I’m bailing out dozens of people weekly,” Higgins said.
Higgins said an important factor in the Bail Project’s model is client follow-up: making sure clients have the resources they need after their bail is paid and that they are receiving solidarity, not charity.
St. Louis was chosen partially because of its status as a high-incarceration jurisdiction. It has also drawn controversy about the conditions in its facilities, particularly the city’s Medium Security Institution, also known as the Workhouse. ArchCity Defenders recently sued the city with the goal of closing the Workhouse, which has been criticized for poor temperature regulation, black mold growth and denial of medical care, among other issues.
At a press conference in November, ArchCity Executive Director Blake Strode said up to 99 percent of those at the Workhouse are being held on a pre-trial basis, because they cannot afford to pay cash bail.
“Taxpayers spend an estimated $14 billion annually incarcerating people who haven’t been convicted of anything, and because jail contributes so profoundly to the perpetuation of poverty, the collateral costs are estimated to be as high as $140 billion every year,” the Bail Project said on its website.
Higgins said pretrial incarceration also erodes the presumption of innocence that is built into the American justice system.
“It is a fiction to presume that someone can be presumed innocent and yet live in a cage,” Higgins said.
Aside from the financial impact, spending even a short time in jail can have other serious effects on an individual who is unable to pay bail.
“When someone is locked up and can’t afford to pay their bail, terrible things happen,” the Bail Project said on its website. “Even one night in jail can cause someone to lose their job, their home, and even custody of their children. For many, it can jeopardize immigration status. And just a few nights in jail risks serious, irrevocable physical and mental harm. Studies show the first three days in jail are when people are most likely to suffer physical assaults and sexual violence.”
While the Bail Project believes in upholding the presumption of innocence for all crimes, most of the project’s clients are in jail for minor, non-violent offenses such as marijuana possession. Violent crimes such as homicide generally have much higher bail amounts.
Some jurisdictions, including the state of New Jersey, have replaced the money bail system with risk assessments that use data to determine an arrested person’s probability of returning to court and of reoffending. Harvey, however, said the Bail Project is skeptical of this approach. These algorithms, he said, can reproduce the same patterns of racial injustice as cash bail.
“I think it’s unclear right now how individual jurisdictions would replace cash bail,” Harvey said. “I don’t believe there’s a magic crystal ball that can predict whether someone is likely to reoffend.”
To donate to the Bail Project or learn more about getting involved with the organization, visit bailproject.org.
