Document Journal

To demonstrate what she means when she says bail criminalizes poverty, Insha Rahman, Director of Strategy and New Initiatives at the Vera Institute of Justice and board member of the Brooklyn Community Bail Fund, tells me a story from her early days as a public defender in the Bronx. One day, her client was leaving the methadone clinic, where he went daily to manage his longtime heroin addiction, and a man approached him and offered him $10 for his methadone dose. “My client had rent that was due next week, he could use $10, and frankly, he felt like this person didn’t look well,” Rahman explained. Her client ended up refusing the money, offering the dose for free because the man appeared to need it more than he did. The man, it turns out, was a cop. Her client was charged with a felony drug sale.

When Rahman met her client 24 hours later at Bronx criminal court arraignment, it was clear he was in an impossible situation as a 40-year-old with prior arrests who would not be able to afford bail. The choice was between facing a judge who would most likely set bail given his record, leading to jail time—and causing him to lose his place in a supportive housing residence and miss his next dose of methadone—or taking a plea, even though, by any measure, he did nothing wrong. He ended up pleading guilty to a misdemeanor, shouldering yet another criminal conviction.

Last year, the New York Legislature passed a sweeping bail reform law abolishing bail for most misdemeanors, limiting the crimes for which judges could set bail to primarily violent felonies. Jail populations were estimated to decrease by at least 40%. Under this law, Rahman’s client would have walked free—keeping his housing and avoiding withdrawal—giving him the chance to state his case in front of a jury. “And you know a Bronx jury would acquit him so fast because they’d be like, ‘That cop just set him up,’” Rahman said. “When the main witnesses are police officers in the Bronx, the conviction rate is so low, and it’s in part because it’s a community that doesn’t trust the cops, and I get why.”

“I’ve been doing criminal justice work for about 20 years and I’ve never seen a moment like this one. There’s both the immense pain of it and then the incredible opportunity that hopefully, the path we walk from here on out is radically different in change than the one that got us here.”

Over the past month, our social media feeds have gone from focaccia art attempts to calls to abolish the police, and many of us have joined the thousands of protests that have erupted not only across the United States, but globally. Receipt screenshots challenging friends and followers to match donations bloomed across Twitter and Instagram. Bail funds have been major recipients of these donations with the Minnesota Freedom Fund raising roughly $20 million in four days. But for many of those donating—not to mention those nearly 10 thousand people being arrested at protests—this is their first time confronting the bail system in the United States.

With this in mind, Document asked Rahman to give a primer on how bail functions in the United States, how bail funds work, and why bail reform is met with such vitriolic resistance. (Even New York’s bail reform was amended in a bill passed in early April 2020, supported by Governor Andrew Cuomo and Mayor Bill de Blasio, that expanded the number of crimes for which a judge can set bail.) “I think it’s really important to talk about bail as criminalizing poverty and also having deep racial disparity and racism at its core. It’s really important to talk about economic impact as well as the impact of race because the two are inextricably entwined,” Rahman said.  “I’ve been doing criminal justice work for about 20 years and I’ve never seen a moment like this one. There’s both the immense pain of it and then the incredible opportunity that hopefully, the path we walk from here on out is radically different in change than the one that got us here.”

Maraya Fisher: Can you walk me through what bail is and how it works?

Insha Rahman: I think, for a lot of folks, this is the first time they’ve thought about bail and what happens after an arrest. What can happen as the result of any arrest is that if a prosecutor moves forward on charges there’s a possibility of bail being set. Bail is quite literally a dollar amount that the person or family member or loved one pays to get somebody out of bail pretrial, meaning while their case is pending. It works on a very basic principle: the idea is that if a judge sets bail, there’s a belief that this person needs a financial incentive to come back to court. So the purpose of bail is to incentivize court appearance.

Bail can look like a couple of different forms, one is cash bail or money bail and it’s quite literally: bail is set at $5,000 and you pay $5,000 to the court. If you can make it, you walk out of jail, and so long as you make all of your court appearances, regardless of what happens with the outcome of the case, you get your money back. The problem with money bail is it works if you have that kind of money, but we know most Americans don’t have access to a large sum of money just sitting around. There’s an amazing statistic from the federal reserve that estimated that over 40% of Americans don’t have $400 to cover an emergency. The average bail in a felony case is $10,000.

There’s another form of bail that gets used in most states across the country and that’s what’s called commercial bail, or insurance-backed bail bonds. And that’s essentially where the form of bail that gets set, you can go to a bail bondsman who is a for-profit entity or company that will essentially underwrite the bail amount so long as you pay a deposit and that deposit that you put down, regardless of what happens at the end of the case—if your loved one or family member makes all of their court dates, if the charges get dismissed—that money never comes back to you, it stays in the pockets of the bail bondsman.

How much we rely on money bail, in general, is a uniquely American phenomenon. We incarcerate at a rate that is outsized compared to the rest of the world. But the amount that we use cash bail and how often we use it is also outsized. We’re one of two countries that allow for a for-profit bail system where a private third party can turn a profit off of an arrest and somebody having to bail. It’s us and the Philippines. And the reason why is obvious. There are perverse incentives in allowing for somebody to turn a profit over what is for people one of the hardest and most challenging circumstances in their lives, which is being arrested and the aftermath of an arrest.

Maraya: Bail funds are one of the most popular places people have been donating to recently. As a board member of the Brooklyn Community Bail Fund, can you walk me through what these are?

Insha: Bail funds operate on the principle that they will put down the money bail amount for somebody to get them free from jail if they don’t have the money to afford their freedom themselves. And so bail funds have been around for forever, pretty much for as long as we’ve relied on incarceration or taking away someone’s freedom. Think about this in the times of slavery: families, communities, put together their money to buy somebody out of enslavement. That was, in essence, sort of a version of a bail fund. It’s that principle that has come to be, in some ways, formalized, especially in this moment as we’re seeing protesters get arrested, bail being set, and the need to respond with urgency to make sure that people aren’t being punished for exercising their first amendment rights and for vocalizing what we’ve known for years and years and years in this country to be true: safety actually doesn’t mean the safety of Black people, especially at the hands of the police.

“I think there’s still a deep, deep fear that letting people free compromises our public safety…it’s a fear that is deep-seated and has its roots in slavery and racism in this country, and it’s one that is perpetuated in white communities and white institutions that maintain power.”

In terms of bail funds, we’re seeing two kinds: We’re seeing bail funds that are paying protests’ bail, which is where a lot of the donations, literally millions and millions of dollars, have gone just in the last two weeks. Then in the past, I would say five to seven years, we’ve seen a proliferation of bail funds that are run by nonprofits, and some are run by volunteers, where they receive donations, they pay bail for people to essentially make the point that people don’t need a financial stake to come back to court. They have great outcomes. People show up to court, even when it’s not their own money on the line.

And so the point of bail funds is not simply to pay bail and get that person free, get that money back, and then pay bail for the next person, but to actually prove the point that we don’t need money bail, and that we don’t need to rely on incarceration to have good outcomes to get people to come back to court. In fact, we’re safer when we don’t use money bail. I think every bail fund would say to you, our goal is to put ourselves out of existence by demonstrating that this system doesn’t actually work.

Maraya: It seems very clear from your anecdote about the man who got arrested outside the methadone clinic that the bail system is really unjust. Who is resistant to reform and why? There must be some sort of vested interest in keeping the system in place.

Insha: It’s such a great question: why is it so hard to fundamentally change a system that anybody who hears that story would be like, ‘God, that’s awful,’ right? Everybody, including many prosecutors, many police officers, many judges would agree with you and me that that’s just terrible and that should have never happened. And yet New York passed bail reform last year and literally the minute it passed, the backlash started. [In] the news, January through March until Coronavirus took over, all anybody could talk about was bail reform and that somehow it’s compromising our public safety because we are no longer going to allow judges and prosecutors to put people in jail on low-level offenses.

Fundamentally, the philosophical challenge is most people don’t believe that we can actually be as safe or even more safe if we rely on incarceration less.  I think there’s still a deep, deep fear that letting people free compromises our public safety, and that’s fear isn’t held necessarily in Black communities; it’s a fear that is deep-seated and has its roots in slavery and racism in this country, and it’s one that is perpetuated in white communities and white institutions that maintain power.

When New York passed bail reform, it was truly a courageous thing to do and was a blow to white supremacy. As a result of bail reform from this point last year, our jail population across New York state has basically been cut in half because prosecutors can no longer request bail and judges no longer set bail on most misdemeanors and non-violent felonies, which are the vast majority of cases that come through the court.

But there are also other incentives. For example, prosecutors, if they have somebody who’s in jail pretrial, they have leverage for a more severe plea. If somebody is sitting in jail pretrial, they’re much more likely to say, ‘If that plea gets me out, I will take it, whether I’m guilty or not.’ The truth is, most prosecutors’ offices [measure] the wins in the number of convictions, not the amount of justice they mete out.

Another opponent is law enforcement, especially sheriffs, and what you saw in New York was the Sheriffs’ Association fought long and hard against bail reform and were one of the key groups involved in organizing a backlash. The reason why is because the jails have literally emptied out as a result of bail reform. Like I said, half as many people are in jail today as they were this time last year. That means sheriffs will get less local funding for their jail because they don’t need it. Their department will shrink, maybe their staff will get laid off. All of those are the right outcomes, right? We can’t keep people employed on the basis of needless incarceration, and yet those are, again, the perverse incentives that we see.

[The final opponent is] the bail bond industry because every time we do bail reform, it’s the bail bond industry that suffers. We’ve seen this now in a number of different places: New Jersey did bail reform back in 2017 and, again, the backlash was immediate, it was vociferous, and if you looked just a little bit under the hood, it was a really well-funded campaign by nine national bail bond insurance companies. So what looked like mom and pop endeavors actually had huge sort of lines of insurance with these national companies who are seeing their business go the way of the dodo every time a place eliminates money bail or eliminates commercial money bail. Those same entities that we saw sort of fund the backlash in New Jersey we’re seeing fund the backlash to bail reform in California and funded the backlash to bail reform here. We literally traced the money that was coming into this online Facebook and Twitter campaign saying bail reform is compromising to the safety of all of our communities, and the folks who were purchasing those ads are actually the same people who are behind some of the backlash ads in New Jersey.

“Bail reform and having fewer people in jail fundamentally doesn’t threaten or undermine public safety, and that’s a really important message for people to learn.”

Maraya: Wow, that is so insidious.

Insha: Isn’t it gross? The profit motive sort of shows up everywhere in our lives—it shows up really everywhere in the criminal justice system—but to see just how specifically it shows up in the bail reform conversation is just really remarkable and yeah, so insidious.

Maraya: Well, because there’s so much energy behind this now, what can we do, what can we work towards to change now?

Insha: I don’t mean for this to be all doom and gloom. Some of it is doom and gloom for sure, but not all. For one thing, the sort of attention that bail funds are getting where literally they have raised somewhere to the tune of $40, $50 million in the past couple of weeks. That is such an important moment for the criminal justice system in this country. And so here’s what we can do: for one thing, give to bail funds and educate yourself about bail reform. Right now, our focus on police violence is so tied to bail as well, because, you know, we have 10.5 million arrests that happen in this country each year and following each arrest is the threat of injury, of harm, and of death. And at the end of every arrest is the potential for bail to be set, and so bail reform is such an obvious place to put our energy and attention as we think about the long-term following these protests. We’re seeing lots of potential legislation, much in the way that New York passed really transformative bail reform. And so everybody can write to their local elected officials, to their state representatives, call and ask what are you doing on bail reform.

It’s not just about eliminating money bail, while that is first and foremost really important, but it’s also about making sure that bail reform results in fewer people in jail, that bail reform results in ending racial disparities of who ends up incarcerated or who has bail set, and importantly that bail reform upholds public safety because all of us want safety in our communities. Bail reform and having fewer people in jail fundamentally doesn’t threaten or undermine public safety, and that’s a really important message for people to learn.

The second thing is we have elections coming up, primaries in June on up until November and on the November ballot is not only the really important sort of big-ticket items but really important local elections for prosecutors and judges. Prosecutors are the ones who decide to request bail or consent to somebody being released during their case, and judges are the ones who set bail or choose to release people without any bail. So those are incredibly important elections to make sure that the candidates that we vote for at the ballot box, in terms of prosecutors and judges, are people who support bail reform and not using money bail.

In this moment, we’re seeing uprising and protests and a call for change in a way we’ve never seen before. One of the immediate needs is to make sure that protesters who are arrested and have bail set are bailed out and so donating to a bail fund is key. It’s also really important to support organizing and advocacy that’s happening at the local level, especially Black-led organizing, local Black Lives Matter chapters who have been holding down this issue of police violence especially in Black communities for years. It’s finally an issue where all of us are comfortable finally saying ‘Black lives matter.’ It’s really important that we continue to say that, day in, day out, not just in this moment, not just during the protests, but after. And then the important work once the protests die down, and I hope they don’t die down any time soon, but they will at some point, the important work is how do we fundamentally change the policies and the practices that have given us this system that harms Black and Brown people? One way is to really re-examine our local budget and to think about how budgets are moral documents; they reflect the priorities and the choices we make. To make different choices and invest in communities and education and healthcare and everything that we know actually delivers safety, because loaded police departments—as we know they are across the country—certainly aren’t delivering that.