Bailing Out

The Brooklyn Community Bail Fund opened for business in 2015, a heady time for criminal justice reform. The protests in Ferguson, Missouri, and Baltimore had helped catapult conversations about police violence, mass incarceration, and the myriad injustices of the criminal justice system into a wider public awareness. For the first time in a generation or more, the United States seemed primed to reevaluate its commitment to mass incarceration and the institutions that fed it.
 Money bail—the practice that keeps someone accused of a crime in jail unless she turns over cash to a court in order to ensure that she will return for future court dates—was becoming a big part of these new conversations. For people fighting to dismantle the machinery of mass incarceration, money bail looked like a soft target—a winnable battle in a daunting war, because the injustice of money bail was both dramatic and easy to understand: Tying people’s freedom to their ability to pay means that poor people go to jail while rich people don’t.

Tying people’s freedom to
their ability to pay means that
poor people go to jail while
rich people don’t. 
As the conscience-shocking implications of bail dawned on a wider audience, so did one of the tools available to fight it: the bail fund. Bail funds have a history stretching back decades, as communities and movements pooled money to free their loved ones from detention. But a modern variation on the tactic had emerged in the Bronx in 2007, when public defenders quietly launched a small fund to bail their clients out. An angry judge soon shut the fund down , arguing that it constituted a violation of state insurance law—but not before the fund had amassed statistics demonstrating what anyone paying attention had already known: that money bail was not necessary to achieve its stated goal of making sure defendants don’t go on the lam, and that money bail did help coerce guilty pleas from people who, without it, would go free. 
In 2012, the backers of the Bronx fund and other reformers eventually succeeded in changing New York state law to permit the operation of charitable bail funds, provided they only posted bail for misdemeanor charges in cases setting bail below $2,000. The Bronx fund was revived, and, not long after, public defenders across town launched the Brooklyn Community Bail Fund. As protests around the police killing of African American teenager Michael Brown in Ferguson, Missouri, helped spark the Black Lives Matter movement, both funds garnered significant public attention —and both grew in size and influence. The founders of the Bronx fund went national, creating the Bail Project, enlisting high-profile philanthropic investors such as Richard Branson and Michael E. Novogratz in their plans to establish 40 bail funds around the country. The Brooklyn Community Bail Fund became the largest in the country, posting more than $4.8 million in bond for more than 4,000 defendants as of last year. The Brooklyn fund also incubated the National Bail Fund Network, a coalition of over 60 bail and bond funds around the country, spinning it off in 2018.
 Bail had become sexy. Facebook co-founders , the TED-talk empire , and other high-profile philanthropists wanted in. Art-provocateurs were building apps that mined cryptocurrency in the background of your home computer to help funds pay bail. In what may have been the high-water mark for the frothy enthusiasm for bail funds, the government of New York City, which oversees and underwrites the police and jail apparatus that keeps New Yorkers held on bail, decided that rather than addressing the conditions that made bail funds necessary, it wanted to create a bail fund of its own. In August 2017, the city-run Liberty Fund launched with $1.4 million in city funding for operating costs and another $400,000 for bail payments donated by a private foundation. 

“Dismantling a system requires that we explicitly be in tension with it,” read a statement that the fund posted to Medium . “Our work is meant to demonstrate that we must abolish money bail, not make bail funds bigger. Continuing to pay bail at this point would amount to acquiescence to the continued existence of money bail. We would effectively be transformed into a permanent fixture of the system which we have fought so tirelessly to dismantle.” From one perspective, the Brooklyn Community Bail Fund had become a victim of its own success. The work of it and other New York bail funds had brought a formerly routine brand of court-sanctioned discrimination into national prominence—both through marshaling data showing that, in comparable cases, people assessed with bail are no more likely to skip town or be arrested for another crime than those who are released without bail and by staging a kind of theater of liberation in courthouses every day. “Anyone looking at the current landscape of bail reform and saying that bail funds weren’t a big part of why we have seen change is either not paying attention or being disingenuous,” said Jocelyn Simonson, an associate professor at Brooklyn Law School who studies bail funds and other tactics—court watching, clemency campaigns, participatory defense—employed by movements resisting incarceration.
 To be clear: The Brooklyn Community Bail Fund stopped posting bail for criminal defendants at the end of last year, but it isn’t dissolving itself as an organization. “This is a shift in tactics, but we’re still very busy,” said Peter Goldberg, the fund’s founding executive director. The bail fund is publishing educational booklets to inform people of their rights. And it’s helping to run a court-watch program, in which volunteers sit through arraignment court to track how cases are handled. These initiatives go deeper into foundational questions of how criminal courts are treating defendants. Are district attorneys who promised to stop prosecuting low-level possession cases following through? Are judges violating the rules about setting bail? “We’ve found it to be a powerful tool, both for educating volunteers about what really happens in this system, and for letting judges and prosecutors know that the public is watching what they do,” Goldberg said.
 The fund is also continuing to post bond for people held in immigration detention, through a subsidiary program, the New York Immigrant Freedom Fund . “Immigration detention is a whole different world from the criminal side,” Goldberg said. “There’s no question right now of our work getting co-opted by the immigration system. We are  deeply  in tension with it.”

In a sense, this shift has been on the horizon from the early days of the contemporary bail movement. “We’ve been asking this question for six years, since the fund was first conceptualized,” said Goldberg. “‘Is there going to be a time when we get so big that the state or the city begins to really see us as part of the system, and rely on us to do things they were saying  they  wanted to do, like decarcerate, or close Rikers Island?’”
 Gulag on ice: New York City announced plans in 2017 to shut down the brutal correctional facility at Rikers Island, but the city remains divided on proposals to maintain its current jail capacity. Debra L Rothenberg/Getty That question was hard to ignore in 2015, when the City of New York announced that it would be forming its own bail fund. This move, which came largely at the behest of then-City Council Speaker Melissa Mark-Viverito, created an instant bind for bail activists in New York. Leaders of the movement were mostly reluctant to criticize the creation of another bail fund on the record; after all, more funds using more money to post more bail for more people could only mean an immediate reduction in human suffering.

Leaders of the Brooklyn Community Bail Fund registered this same sense of decidedly equivocal accomplishment when they noticed that the New York City Mayor’s Office of Criminal Justice began issuing reports demonstrating the city’s progress in drawing down its jail population. In 2018, an MOCJ report celebrated a 60 percent decline over four years in the number of people jailed on bail amounts of $2,000 or less. “Those are the people we’re bailing out,” Goldberg said. “So now the city is patting itself on the back for reducing its jail population, but these are people you would still be locking up if we hadn’t bailed them out. We’re here to show you you need to shut this down. Don’t include us as one of your decarceral strategies.”
 The New York court system was adapting to the advent of bail funds in real time as well. Public defenders began to notice that judges would use the funds to violate the spirit, if not the letter, of the law. “You’re supposed to have a good reason for setting bail, but instead, you’d see judges set bail at $500, which is nuisance bail, and then they say off the record, ‘Well, the bail fund will pay that, so they’ll be out,’” said Amanda Jack, a public defender in Manhattan. “That became daily happenstance in court, but it’s not OK. These people should just be released, period. It’s just cover for the judge.”
 The logic behind New York judges’ disinclination to reject prosecutors’ requests for bail is multilayered. Many judges are former prosecutors themselves. And every judge lives in fear of showing up on the cover of the  New York Post  as the creep who released a defendant who went on to commit a crime of spectacular violence. Letting a defendant go free carries a potentially great reputational risk for a judge. Detaining someone on bail, by contrast, a judge risks nothing.
 The final straw for the Brooklyn fund came last spring, when the state legislature, after years of false starts, finally passed a raft of criminal justice reforms—including landmark legislation to sharply reduce the use of money bail. For the Brooklyn Community Bail Fund and its allies, the push for this legislation was a crucial project—but also one that was fraught with peril. On the one hand, the need to revise the laws was plain: As long as prosecutors were legally allowed to ask judges to hold people on money bail, they would do so, and as long as they asked, judges would let them.
 The Brooklyn Community Bail Fund
had become so deeply incorporated into
the bail system that organizers feared it
was actually propping it up.

But the alternatives to cash bail now emerging in jurisdictions throughout the country are deeply troubling for civil liberties advocates. As many jurisdictions have stepped away from cash bail, they have adopted a battery of “risk assessment tools” and predictive algorithms to try to foretell which defendants will commit future crimes if they’re permitted to go free until their cases are resolved. Such innovations come packaged in the authority of dispassionate statistical inquiry, and are commonly heralded by their proponents as a just and rational alternative to the transparent injustice of wealth-based detention. But in professing to forecast future crime, they are just as apt to conjure the abuses of the predictive punishment regimes of dystopian science fiction. In some instances, the actual algorithms used to determine who is free and who is caged are proprietary, and defendants have no way to access or challenge the black box computations that determine their fate. And because they rely on historical data to predict future behavior, all of these tools suffer from a garbage-in-garbage-out problem: If you’re using past precedent to guess who’s going to be rearrested, what you’re really predicting is who the police have historically targeted. In the United States, that means poor black and brown people—and sure enough, analyses of these tools have found them to produce racist outcomes that disproportionately lock up black defendants before trial.

A coalition of public defenders, bail fund staff, advocates, and activists made the trek to Albany in early 2019 to lobby state legislators for the end of money bail—and as they prepared to fan out in the state capitol, they were determined that New York would not follow the example of California, which had tried to do the same thing the year before. A similar coalition had sought to get Golden State lawmakers to abolish money bail in the wake of a state appeals court ruling condemning a pattern among judges of setting unaffordable bails for the purpose of locking up criminal defendants. An early version of the legislation, known as SB 10, announced its intent to “safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system.” The bill’s original language asserted a broad presumption that defendants would be released pretrial. It would have limited the use of risk-assessment algorithms and required audits of their use, in order to check for discriminatory outcomes. The forces most steeply invested in California’s existing money bail regime—commercial bail bondsmen, law enforcement, prosecutors, and judges—all strongly opposed the legislation. For most reform advocates, the bill might not have been perfect—many were troubled by its explicit endorsement of risk-assessment tools—but it was a huge step in the right direction.
 But in the final days of the legislative session in August 2018, the lawmakers who sponsored SB 10 swerved, completely rewriting the bill so as to satisfy judges and prosecutors and defy most every stated aim of the advocates who had first supported it. The new bill mandated the use of risk-assessment tools and gave judges unlimited discretion to impose pretrial detention on anyone they suspected might be a risk to commit another crime or fail to make future court dates. In other words, SB 10 was a textbook illustration of how reforms to money bail can go badly wrong. Most of the groups pushing for the original bill’s passage were horrified, and began campaigning against the revised legislation. But it was too late; the bill passed the legislature, and then-Governor Jerry Brown signed it into law on August 28.
 SB 10 did accomplish the long-sought goal of ending money bail. (Indeed, commercial bail bondsmen put out of business by the law were the only constituency consistently opposed to SB 10 in all its guises, and are currently pushing a referendum to overturn the law.) But the legislation provided a stark cautionary saga for bail abolitionists around the country: In the right set of conditions, the state can enact “reforms” that grant the proximate goal of ending money bail while maintaining or even expanding its power to keep people locked up without trial. As San Francisco’s new district attorney, Chesa Boudin, then a public defender, told NPR last year , “The new SB 10 doesn’t actually change the racist system of mass incarceration. It just expands it.”

It was, from all perspectives, an imperfect compromise. The district attorneys and police unions, who had loudly argued that the changes would lead to a return to New York’s lawless bad old days, were dismayed that so many defendants would now enjoy the presumption of release. And local reformers, united under the banner of ending money bail, were devastated to realize that—after what many worried would be their single best opportunity to change the law for the foreseeable future—an individual’s access to cash would continue to determine his or her freedom in many cases. “This system has so many layers of oppression
and all these interlocking systems, and there
aren’t a lot of simple buttons you can press so
that everyone gets out and gets free.” 
In an effort to palliate these advocates, legislators offered a work-around, passing legislation to relax the restrictions on bail funds, allowing them to post higher bails and to bail out people facing Class-A felony charges. But to many activists—including those working with the Brooklyn Community Bail Fund—this solution was further evidence of how the work of bail funds could be used to justify a broad, systemwide refusal to undertake comprehensive reform. “The state is essentially giving bail funds the purpose of posting bail for people who fall into these carve-outs,” said Simonson. “When bail funds do that, in a sense they’re legitimizing that choice, because maybe things will still quote-unquote ‘work.’ It can function as legitimizing the rhetoric the state uses to justify incarceration.”
 “Bail funds became an escape hatch for a political system that lacked the courage to end money bail,” the leaders of Brooklyn fund wrote in their September statement . They said as well that it’s easy to foresee how DAs and police unions could channel future legislative battles toward expanding the carve-outs and the continued reliance on money bail. “We cannot continue operating as a revolving bail fund if we are to be the state’s Band-Aid,” the statement’s authors wrote. “We would no longer be a community bail fund fighting for the end of pretrial detention if we were to be an extension of the state.”
 When Goldberg passed on news of the decision to senior leadership of the city’s public defender organizations, one of them was furious, telling him that people would go to jail as a result. Public defenders also fiercely debated the Brooklyn fund’s shutdown plan on professional listservs. Many feared that the decision would deprive their clients of a crucial path toward freedom. Others denounced what they characterized as a privileged brand of competitive wokeness on the part of the fund and its supporters. The fund was adopting a pose of ideological purity, they felt, sneering at the necessary compromises that come of working within the system. Yet other public defenders saw the decision to stop posting bail as a difficult but courageous one.
 “I applaud the decision , and I mourn it,” said Jack, the Manhattan public defender. “I can’t celebrate it for my clients. There are going to be people on Rikers in 2020 because the bail fund isn’t there to bail them out.” But at the same time, she said, the compromise in Albany put the bail fund in an untenable position. “The legislature and [Governor Andrew] Cuomo were absolutely reliant on the existence of the bail funds,” Jack said. “The state is relying on bail funds to be part of the apparatus going forward, instead of just addressing bail as a problem.”
 New York Governor Andrew Cuomo walks past jail cells in the Clinton Correctional Facility in Dannemora. Darren McGee/New York State Governor’s Office/Getty The fund found support for its decision among other allies as well. As they wrestled with their decision, the Brooklyn fund leaders solicited the advice of their own organizational partners and formerly incarcerated people.

Roger Clark, a 45-year-old activist with Vocal NY, was part of a focus group the bail fund assembled to talk through its next moves. Clark, a Brooklyn native, was arrested when he was 20 and charged with a shooting he says he didn’t commit. But after he’d spent a year trying to fight his case from a cell on Rikers Island because he couldn’t make bail, he gradually lost his resolve to seek full exoneration. “You see a lot of cutting and stabbing and it traumatizes you,” Clark said. “You didn’t commit the crime, but you’re going through a lot and you just want to get the hell out of there, you know? So I took the wrong way out, and I took a plea.”
 In his focus group, Clark explained that he favored the course of no longer posting bail, in part because of the changed legal situation around bail in the state. “Of course, it’s good to be helping people on the individual level, but if that’s all you’re doing, it’s just a Band-Aid on the problem,” Clark said. “There’s got to be a bigger picture. How do we push on legislators to actually restructure the criminal justice system?”

“Places like New York are on the third or fourth incremental step of policy change around pretrial detention,” said Weiss of the National Bail Fund Network. “But there are plenty of places where there has been zero change, where the act of bailing out a bunch of strangers is still totally catalyzing.”

Even so, the questions confronting the Brooklyn bail fund have resonance well beyond New York, Weiss said. “Across the country, there are many jurisdictions and many bail funds who are approaching the horizon where they’re reevaluating,” she said. “Is this tactic actually causing tension in the system that is leading towards change, or are we now just the release valve?”
 The Chicago Community Bond Fund launched in 2014, in the aftermath of the fatal shooting of 17-year-old Desean Pittman and 19-year-old Roshad McIntosh by Chicago police, just two weeks after Michael Brown’s killing in Ferguson. A few days after Pittman’s shooting, police allegedly disrupted a vigil for Pittman, kicking over candles, tearing down posters, and mocking mourners. In the melee that followed, eight people were arrested, five of whom— including Pittman’s mother—were charged and held on bail. Over the next four months, Pittman’s family and other organizers raised nearly $30,000 to free the arrestees. The effort evolved into a standing bail fund—which, unlike the New York funds launched by public defenders, was administered by community members themselves.

Born as it was out of a community’s desire to free its loved ones, the Chicago fund is animated by an intimate appreciation of how procuring bail for an arrestee can immediately alleviate individual human suffering. But its leaders also recognize the rhetorical and educational value of a bail fund.
 “When we started operating in 2015, it was still possible to shock the conscience of people that there were so many thousands of people locked up while they were presumed innocent and awaiting trial,” Grace said. “That we could go down to the jail and buy people’s freedom, that was still news at the time, so it was possible to build awareness. We told people’s stories, we talked about the impact of jail.”
 But Grace said that things have changed in Chicago . “It’s no longer newsworthy or shocking to the conscience, because so many more people know about it,” she said. “There’s no longer the same need for baseline knowledge-building.”
 In 2016, some of the people whom the Chicago Community Bail Fund had bailed out brought a lawsuit over wealth-based detention in Cook County. Local courts were forced to establish new rules with the stated intention of ensuring that no one be jailed pretrial simply for an inability to pay money bond. The Chicago fund then helped launch a court-watching operation to assess whether Chicago judges, who historically had relied heavily on unaffordable money bail, were actually abiding by the new directive. Pretrial detentions dropped precipitously, but some people continued to be held on money bail they could not afford. So the fund’s members were baffled when, in December 2018, a Cook County commissioner introduced legislation to exempt nonprofit bail funds from the considerable nonreturnable processing fees local courts deduct from all bail postings.
 “We hadn’t been consulted,” Grace said. “And our position was, ‘We don’t want this. Don’t make an exception for bail funds, which are actually probably better equipped to handle those fees; how about you just don’t extract that money from the moms and grandmas and girlfriends who pay the majority of bonds in Cook County?’” The proposed ordinance came 18 months after the court had announced rules supposedly ending unaffordable money bail. “Why are you proposing an ordinance facilitating the operation of a bail fund a year and a half after a bail fund wasn’t supposed to be needed?” Grace remembers thinking. “Why are county judges continuing to set unaffordable money bonds? From a governance standpoint, the emphasis should be on enforcing the law.”
 Grace said that the main takeaway for the Chicago Community Bond Fund was much the same conclusion that the Brooklyn fund reached: Paying bail is just one tactic in a larger project. “We could be paying all the bail in the county, and it would be helping the people we were bailing out, but it wouldn’t necessarily change the way the system works,” she said. “Ultimately, we have to be about building power that makes the system responsive to the community.”

“At a certain point, it can be like letting off steam in a pressure cooker,” said Weiss. “If you have a sheriff getting nervous that jail conditions have reached a point where there’s going to be public outrage, or a legal issue, or a budget issue, what’s the best way to be in tension with the system that produced that outcome? Is it to pay the bail for enough people to alleviate the situation just enough that the sheriff can say, ‘Phew, now there isn’t going to be a human rights investigation?’”

The Brooklyn fund’s decision to stop posting bail marks a new moment in the fight for criminal justice reform. Five years out from the burst of energy and awareness that exploded out of Ferguson and the Black Lives Matter movement , advocates are taking a hard look at just what they’re after, how they’re going about getting it, and who’s really on their side.

Neither camp supports the status quo. Both abolitionists and reformers believe that money bail is medieval and due for the scrap heap—but some in the latter camp propose to replace jail and bail with predictive algorithms, ankle monitors, or a maze of supervision and check-in measures that opponents say would be tantamount to home arrest.
 “If you are just stuck on ending money bail, what you’re going to end up with a system that will adapt to that, end cash bail altogether, giving people no way out,” said Kaba, the abolitionist organizer . “Now you have more incarceration, not less. We should be saying, ‘End cash bond  and  pretrial detention,’ always in the same paragraph. That helps slow down the co-optation.”

Some of the same tensions run through the debate in New York City about what to do with Rikers, the city’s island jail complex. For decades, city officials turned a blind eye to the Rikers gulag , whose crumbling buildings housed a culture of chaos and violence. In 2014, Preet Bharara, the U.S. attorney for the Southern District of New York, issued a statement to accompany a report from his office condemning Rikers as “a place where brute force is the first impulse,” a realm of officially sanctioned beatdown crews, retaliatory beatings by guards, and deadly medical neglect “more inspired by  Lord of the Flies  than any legitimate philosophy of humane detention.” Yet even then, few believed the city’s government could be motivated to meaningfully confront the true scale of malign state-sanctioned neglect at Rikers. “There’s got to be a bigger picture.
How do we push on legislators to
actually restructure the criminal
justice system?” 
In 2017, a combination of popular organizing and some shrewd political maneuvering by the City Council finally forced Mayor Bill de Blasio to commit to closing the Rikers jails once and for all. Many regarded de Blasio’s announcement as nothing short of miraculous—one of those rare moments when the wished-for thing at the far edge of the possible actually comes into being.
 But in the years since, the political environment has shifted dramatically. Last fall, when the City Council finally passed the plan to shutter Rikers and replace it with a network of smaller, more humane jails distributed throughout the city in closer proximity to courthouses, the council did so over the near-fatal objections of a noisy dissident bloc. The resistance did not come, for the most part, from NIMBY burghers fretting over the effect of the new jails on their property values (though those voices were heard, too). Instead, the main opponents were allied with No New Jails NYC, a coalition organized around the abolitionist credo that any cages constructed will be cages filled. These activists insist that building any new jail space is incompatible with the goal of ending mass incarceration—and will only serve to extend rather than to roll back decades of misguided and racist reliance on the criminal system to control every social problem.

“There’s definitely a similar thing happening with the conversation around Rikers and the conversation around bail,” said Jack, the public defender. “It’s about the tension between the short-term goal and the underlying long-term goal. If you build new jails, they’re going to get filled. If you rely on bail funds, they’ll be used to pay bail.” Uncertain victory: Protesters at a vote to shutter Rikers Island last year opposed the construction of new jails to house displaced Rikers inmates. Andrew Lichtenstein/Corbis/Getty But things are happening fast. Even as the leaders of the Brooklyn Community Bail Fund were gaming out the most productive role the fund could play in the new environment, the ground continued to move beneath them.

The hits kept coming: When the reforms kicked in on January 1, 2020, dramatically reducing the number of people who can be held on bail, the same coalition of prosecutors, police unions, and conservative news media that had opposed the legislation in the first place launched an attack on the law with a level of fury and coordination that surprised everyone in the criminal justice reform community. The changes were rushed and ill-considered, opponents claimed. In the name of safety, judges should have more power to detain people before they’ve been found guilty, not less.

2020-04-06 | Magazine, April 2020, Bail Reform | English |