Between the recent events of the George Floyd protests and the current coronavirus pandemic, a brighter light now shines on injustices in our legal system, especially with cash bail. In America, it is not innocent until proven guilty, it's guilty until able to pay. No one knows more about this than CEO and founder of The Bail Project, Robin Steinberg. Steinberg has over 35 years of Public Defending under her belt and has also created The Bronx Defenders and The Bronx Freedom Fund. The Bail Project alone has assisted in 10,000 bailouts to date.
As Steinberg describes in our interview on What We Don't Know, cash bail is, 'Having skin in the game.' The idea is that you pay, go to trial, and get your money back. Bail is supposed to ensure that the defendant returns to court by having them contribute financially to the process.
It isn't always a wealthy murderous husband accused of killing his wife sitting in a well-lit courtroom as the judge rules millions in bond as Crime TV shows would have us believe. In reality, judges rule for bail in many non-violent, misdemeanor charges, with 'charge' being the keyword. Bail isn't for convicted people; it's a pretrial payment where innocent people can end up behind bars if they can't pay, many of which are disproportionately black and brown. Bail doesn't validate one's innocence for release; it unfairly asks you to pay for your freedom.
Many of us may remember the tragic story of Kalief Browder who was accused of stealing a backpack in 2010. Browder, only 16 years old, was sent to Rikers Island while awaiting bail, which his family struggled to make. During his time there he endured horrific experiences behind bars for three years, two of which were in solitary confinement. (which is an additionally cruel form of punishment as we learned last week).
The case was dropped for lack of validity, but he sadly, Kalief couldn't recover from the emotional trauma and committed suicide at age 22. Imagine if he only had the bail money, he would be alive today.
The Evolution of Bail
Bail first appeared in the Anglo-Saxon era of 410-1066 England. It was meant solely as a means to settle disputes and crimes and was usually paid by property or possessions. This early form of bail was an accessible solution to most people until societies became more industrialized. By 1776 America broke away from the English way.
Later, The Judiciary Act of 1789 set bail as the standard for all crimes except for death penalties. It became part of the 8th amendment in the Bill of Rights in 1791 removing cruel and unusual punishments and bail fees still, by the 1950s, many demanded reform due to its excessive overuse, no matter the crime.
Eventually, The Bail Reform Act of 1966 came to be; it was required only for flight risks and implored judges to set up alternative methods.
A few years later, Richard Nixon initiated the country into 'The War on Drugs' in 1971. A campaign to crack down hard on crime that many American leaders were eager to adopt. President Regan further pushed this agenda throughout the 80s. Reagan signed the Comprehensive Crime Control Act, which called for stiffer penalties on drug possession while Nancy Regan hit the commercial circuit hard with her 'Just Say No' Campaign.
It was a time when everyone was afraid of losing their "American Dream" that the 80s culture of indulgence enforced, to criminals and drug addicts, and bail was a tool to make the streets safe. It's no coincidence that this same year saw the Bail Reform act of 1984. This is cash bail as we know it today. It applies to all people charged, giving judges the sole authority to set that rate, which opens the door for unfair bias and discrimination to those with a lack of funds.
The Types of Bail
The most common form of bail is 'Cash Bail' as simple as its name; it's the full cash amount paid in full, and on some occasions by credit cards or checks.
Commonly used since most people can't pay out of pocket, Surety is a hybrid of insurance and a loan deal made with a bail bond agent. The bondsman charges a premium and collects collateral like jewelry, a car, anything of value in exchange for paying the bail in full and being responsible for the accused making their court appearance.
A defendant can allow the courts to place a lien on their home or land as a bond.
RELEASED ON YOUR OWN RECOGNISANCE
Also known as OR, a defendant can go home without requiring bail, typically minors, nonviolent offenders, or those with no flight risk. Yea, that's right, judges don't have to insist on the bond, they can just let you go.
Commonly known as 'Jumping' or 'Skipping Bail,' Non-Appearance to court is the whole reasoning behind bail and its many forms. The rule of a bond,in a way, says that having disposable money makes you reliable and worthy of being free.
In Steinberg’s' experience, fleeing a court date is rare, and if it does occur, it revolves around challenging life circumstances. To assist with these failure to appear situations, Steinberg is endorsing The Bail Projects' Release the Community with Voluntary Supports' program' This system releases people while setting them up with court date reminders and assistance with basic needs like transportation.
The release program is currently applied through the Bail Projects assistance in 22 jurisdictions across the nation like Los Angeles, CA, Tulsa, OK, and Cleveland, OH. Steinberg emphasizes that the more accessible the path to court dates are for people, the more they show up.
She says, "If you release people with reminders about their court dates and you connect them with tp services, the basic needs that people have that aren't being met, they will come back to court the overwhelming majority of the time and resolve their cases."
This video by Now This World offers a quick look at how Bail disproportionately affects the poor.
The Downsides Of Bail Requirement
Loss of connection to supports and obligations
Pretrial detainees can't work their jobs, attend school, and can't care for their families. If a person has to stay in jail awaiting a trial, which could take months or years, they lose their jobs. Their families suffer in many ways as minor as missing birthdays, to as destructive as losing financial stability.
Safety and well-being compromised
Prisons are at capacity, and courts are overloaded, yet both sides of the sword are unnecessarily weighed down by bail. In light of coping with a pandemic, It seems exceptionally cruel to send an unconvicted citizen to wait behind bars with the many risks involved. Prisons are violent places and, therefore, a danger to those awaiting trial both physically and psychologically.
This video clip below reviews and breaks down the documentary, Time, The Kalief Browder Story, and highlights the traumatic and devastating effects of prison brought on simply by a lack of funds for bail.
So Where Does That Money Go Anyway?
If all goes as planned:
Cash Bail is returned to the defendant, their family, or the bond agent after all court dates and trials regardless of a guilty or not guilty outcome. With Property bail, the lien on the property is released.
When a defendant fails to appear:
The courts keep the bail money of 'bail jumpers' and disperses it among the city or state. In the cases of surety bail; There's a foreclosure on the property. Bail Bondsmen often call on bounty hunters to find and return the defendant to custody to protect their money.
This video below made by The Appeal gives a quick Q & A on how bail bondsmen make money.
The Money Maker That Is The Bail Industry
The bail bond agencies, though presumably, small neon-lit storefronts, are often funded by larger corporate insurance companies who make lots of money from the premium or the cash-ins of collateral on missed court dates. There are over 25,000 bail bond companies nationwide, making up to 2 million yearly in profits.
The contracts signed by defendants and families with bond agencies give these companies the power to extort them and implement terms not mandated by the court. They set defendants up to fail by adding fees to special terms they request, like charges for ankle monitors.
Watch this video below that explains how bail bond agencies get rich with minimal risk of loss while contributing to an impossible financial burden on low-income families.
As the country faces many issues from police reform, racial inequality, and a global pandemic, it's also being asked to re-examine the process that brings society to unrest. "There is finally an appetite," Steinberg shares in a Los Angeles Times interview, "to move away from using handcuffs and jail cells and patrol cars to solve our social problems like poverty and systemic racism and lack of access to healthcare."
The Pandemic Sets Pre-Trial Detainees Free
Overcrowding concerns of inmates' ability to safely distance in response to COVID-19 called into question the validity of jailing people due to empty pockets. Over 20,000 prisoners have contracted the virus so far. Governors nationwide began to clear out their prisons. In April 2020, California set bail to $0 and lessened their prisons by 45%, 100s were pretrial detainees. Massachusetts reduced by 20%, releasing nonviolent pretrial inmates. Orange County, FL, released 300 pretrial prisoners in April.
Many more cities are continuing to reduce bail amounts as well. New York is in the spotlight with its Bail Reform for 2020, which began in January at the cusp of Coronavirus's beginnings. Opposers believe a spike of crime in these 'quarantined times' is to be blamed on limited bail, but Governor Cuomo remains firm in this fight of viral spread. Often the opposer assumes that people behind bars deserve it, are dangerous or are confirmed criminals. The reality is many people in jail are unconvicted for nonviolent offenses, which is why it was apparent to release them at this unprecedented time.
Bail Bondsman; No Longer Business As Usual
In the wake of the Coronavirus, bail has widely been eliminated by many states reducing the demand for bail bond agencies. Business is virtually cut in half as bail requirement for most misdemeanors during the pandemic is removed. Like many companies during this unprecedented time, Bail Bond Agencies have had to lay off staff due to business being slow. The director of the American Bail Coalition told CNBC that, "Business is way down...Most of the criminal justice system is shut down right now, and that includes bail agents. Some agents have posted less than 10% of the bonds they normally would have posted."
This global health crisis can find its silver lining moving towards people's assistance and away from jailing before obtaining a constitutional right to trial. To learn more about how The Bail Project is towards this and the reduction of incarceration amid Coronavirus go to www.thebailproject.org. To donate or to get help with bail, call (323) 366-0799.
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