As Federal Bail Reform Stalls, States and Cities Act

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Senator Bernie Sanders (I-VT) has introduced legislation that would end money bail on the federal level and incentivize states to do the same.

The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Act sponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.

Steinberg got the idea to start a bail fund while working as a public defender, she told the Christian Science Monitor. As an attorney with the Bronx Defenders, she saw every day how cash bail hampered clients who couldn’t afford to pay to get out of detention.

Bail is meant to serve as an insurance policy for courts: defendants either await disposition of their cases behind bars, ensuring that they will show up, or post bail and (presumably) return to retrieve the money they posted.

Reformers claim that the practice is discriminatory, keeping poor defendants who are often charged with low-level crimes behind bars while their well-heeled counterparts go free. In 2007, Steinberg launched the Bronx Freedom Fund, a revolving nonprofit fund for poor people being held in jail before trial.

By bailing clients out for $768 on average, Steinberg enabled them to go home to their jobs and families and fight their cases free. Once clients’ cases have been heard, the bond money returns to the fund, with each dollar circulating more than twice a year.

Steinberg found that freedom made all the difference: more than half of the cases resulted in all charges being dismissed, while others ended in noncustodial sentences. Only two percent of clients were sentenced to jail for the original charges.

Understanding the scale of pretrial incarceration – 450,000 people await trial in local jails on an average night, most of whom are too poor to pay bail – Steinberg knew her work couldn’t stop with the Bronx. She created the Bail Project to bring the initiative to a national scale.

Since its founding, the Bail Project has set up funds in Tulsa, Ok., St. Louis, Detroit, and Louisville, Ky., hiring local “bail disrupters” to track and assist low-income defendants.

The organization was chosen this year as a TED Audacious Project, which pools money from philanthropists for “big bets” on ideas with broad social effect. The Bail Project will receive $24 million over five years, while Steinberg continues to raise money to expand its reach, Anna Verghese, who runs the Audacious Project told the Monitor.

Revolving bail funds such as the Bail Project have decarcerated hundreds of thousands of individuals, but they do not address the underlying issue: federal, state, and county policies putting a price on a person’s freedom while he or she remains innocent in the eyes of the law.

Among major jurisdictions that have made changes, New Jersey’s Criminal Justice Reform Act largely eliminated cash bail within the state starting in January 2017; Washington, D.C., has long relied upon risk assessment tools to determine who is detained pretrial; District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases; and Philadelphia District Attorney Larry Krasner put an end to cash bail requirements for low-level offenses in February.

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