Heller School graduate discusses bail funds, problems with U.S. cash bail system
Brandy Henry spoke with the Justice about the injustices that the bail system presents, especially to Black people and people of color, and how bail funds help combat these injustices.
With the resurgence of the Black Lives Matter movement and continued protests pushing for combating racial injustice, many people have discovered and donated to bail funds through social media this summer. In a June 5 interview, the Justice spoke with Brandy Henry, a graduate of the Heller School of Social Policy, research fellow at Columbia University’s School of Social Work and internship coordinator at the Massachusetts Bail Fund, to learn more about the problems with the United States' bail system and the role of bail funds in addressing those issues. In the interview, Henry did not speak on behalf of the Massachusetts Bail Fund.
Most states use a form of bail known as cash bail, a payment that determines whether a person can go home or must stay in jail while awaiting trial, Henry explained. The purpose of cash bail is to prevent defendants from fleeing, “from basically getting on a boat and going to Bermuda and… never facing justice,” she said.
This is where bail funds come in, serving as a financial resource for individuals who cannot afford to pay their bail, Henry said. According to the Massachusetts Bail Fund website, the Fund can provide up to $5,000 to defendants seeking aid. Regardless of a person’s “court history, charge, or circumstances,” a volunteer from the Fund will go to where the defendant is held and post bail. Once the hearing date arrives, the defendant shows up and the case is closed, and bail money is returned to the Fund and repurposed for the next person who needs support, the website explained.
The Massachusetts Bail Fund is one of the 60 bail funds that are part of the National Bail Fund Network. While bail funds in the network serve as financial resources for people who need bail money, they also collect information and data to “do advocacy and community education around what are the realities of cash bail,” Henry explained.
Following the murder of George Floyd in May, one of the bail funds in this network, the Minnesota Freedom Fund, received over $30 million in donations, according to their website. The MFF explained that a large portion of this money also goes towards supporting detained protesters, acknowledging, “that funds were donated to support the movement for Black liberation and abolition of racist policing and pretrial detention.”
Much of the criticism of cash bail focuses on socioeconomic issues, Henry explained. High bail does not pose a problem for individuals who can afford to pay it off, but for people without money, Henry said, adding that “20 dollars can keep you in jail.” She also noted the importance of identifying the intersections between socioeconomic status and race when it comes to looking at bail in the United States. “You can't disentangle… who's more likely to be arrested and have a bail set in the first place, which is people of color, and then who is more likely not to have the money — also people of color,” she said.
Bail, like many policies in the U.S. criminal justice system, comes from a time when poverty was heavily criminalized and people of color were not legally considered full citizens. “All of our policies and the history of [bail] run together, and so we’re left right now with a legacy… where people of color are technically, legally considered a full person for a long time now, but the way our policies continue to be applied sort of bare out that racist legacy,” Henry said.
With a plethora of factors contributing to why people of color are disproportionately affected by bail — from being more likely to be arrested in the first place, to more likely to not have the money to pay off bail or more likely to have a higher bail set — Henry explained that the problem of bail is heavily intertwined with racism.
The Justice Policy Institute’s 2012 report on bail, called Bail Fail, stated that compared to white people, Black people are five times more likely to be detained in jail in the first place. “Although judges and judicial officers may deny or simply not be aware of any racial bias in pretrial decisions, there is strong evidence that these bail decision makers consider the lost freedom caused by pretrial detention to be a greater loss for whites than for blacks,” the Institute wrote.
While bail is meant to incentivize people to show up for trial, Henry noted that she has not seen evidence that cash bail is what stops people from absconding. Rather, it is barriers like transportation, difficulty finding the correct room in courthouses and disorganization that contribute to poor attendance, she said. According to the Bail Project, “The sprawling geography of American cities, combined with a lack of public transit options” is one of the most pervasive problems behind missed court hearings.
While most bail funds do not provide direct support for people struggling to make their court dates because of problems with transportation, finding childcare or missing work, many bail funds partner with local, grassroots organizations to provide holistic support for defendants, Henry explained. Because it would be overwhelming for one organization to tackle an abundance of needs, working with community organizations not only distributes responsibility, but also helps center the conversation on “people of color who are doing the racial justice on the ground work,” she added.
Henry also noted that “all the data coming out of [bail funds] is that people still show up to court even if they're not on the hook for the money.” She stressed that many people simply want to seek justice, move on with their lives and continue to be a part of their communities.
While each state differs in how bail is enforced, “Washington, D.C. probably has the best systematic approach,” Henry said. Using what is called an unsecured bond, defendants are not expected to pay any money upfront, rather they are only charged if they fail to show up to court. Even though these fines are still problematic, the approach ensures it is not “cash [standing] between a person and their freedom at the beginning,” she explained. States like New York have also taken steps towards a more progressive bail system, abolishing bail for many crimes. In April, however, months after this rule was set in place, the changes to the bail system were rolled back, according to the Marshall Project.
Most states allow individuals who cannot afford bail to use a bondsman, which Henry said is, “essentially a loan agent.” To start, bondsmen typically take a 10% deposit or a collateral, like a car title, from the defendant upon accepting their case. These deposits act as “compensat[ion] for the risk taken by sponsoring an accused criminal — since if that person doesn’t show up to court, the bondsman must fork over his or her bail to the government,” explained a 2019 New York Times article.
If the defendant fails to show up to trial, many bondsmen are then authorized to track the defendant down, perform a citizen's arrest and return the individual to jail. Henry said that many find this process of hunting people down to be problematic as it is “extrajudicial in the way that [bondsmen] use restraining force.” There have also been reported cases in which bondsmen charge absurdly high fees to vulnerable defendants. According to a March 2018 New York Times article, the Southern Poverty Law Center documented cases of bondsmen in New Orleans who “routinely charge more than is allowed by law.” Because bondsmen are not carefully regulated in every state, they often overcharge clients, leveraging the fact that they have the power to put defendants in jail, the article explained.
Another reason why bail funds have been getting so much attention lately, Henry explained, has to do with the COVID-19 pandemic. In the midst of a pandemic, jails that are over-crowded present a serious health risk, not only for people in jail, but also for people living in surrounding communities. Poor sanitation and overcrowding in jails increase the likelihood of the spread of COVID-19, and when staff travel between jails and outside communities, they bring the virus with them. In fact, Henry noted that “seven of the top ten clusters of COVID-19 outbreaks were related to prisons or jails in the U.S.,” which she discusses more in her paper on COVID-19 and decarceration. “That's the greater picture here … addressing mass incarceration keeps everybody happy and safe. And this pandemic is really highlighting that in a very visible way,” she said.
Henry shared her optimism regarding the cultural shift among youth who seem to be driven more by their values than previous generations. She said, “You don't have to go out and be a lawyer or a public defender to have an impact on mass incarceration. Whatever you do, you can bring these values to the work and have an impact.”