The Bail Project and reforming the US bail system

More of us are confronting how racism and white supremacy have morphed from their roots in slavery to the systemic racism that shapes the lives of Black Americans today.

We’re also increasingly coming to understand that one of the most egregious manifestations of those toxic ideas is America’s sprawling system of mass incarceration. But not enough of us realise just how extractive and exploitative that system is - and it starts with money bail.

In the last year, 11 million people, almost all from low-income communities and disproportionately from communities where Black Americans live, were arrested and jailed across the US for ever-increasing minor offenses - conduct that happens in every community but is only policed in those communities.

While resolving their cases, the majority are forced to post money bail or risk losing their jobs, homes, and even their children while waiting in jail. And because most can’t afford the cost, predatory loans in the form of bail bonds have grown into a $2 billion industry. Those billions of dollars come in the form of non-refundable premiums and fees paid by defendants and their families, moving precious resources from America’s poorest communities, through bail bond companies, to private equity companies that own them and to reinsurance companies taking a cut. These eventually pay out to shareholders in America’s wealthiest communities. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being jailed because of their poverty. 

The majority of those who remain in jail - almost half a million people on any given night - are there because they can’t afford to pay money bail. And their fate, regardless of their guilt or innocence, is far worse. Held on bail, they have no bargaining power. Their options are to take whatever deal the prosecution offers or wait for trial behind bars, often over a month. Those detained pretrial are four times more likely to receive a jail sentence, and their average jail sentences are three times longer. Even when they’re found innocent, many spend more time in jail waiting for their trial than they would have if convicted. If they plead guilty in exchange for freedom, they’re accepting a permanent criminal record that will affect future employment, housing, voting rights, immigration status, child custody, and their physical and mental health. Regardless of the case’s outcome, they are significantly more likely to be re-arrested after a jail stay has destabilised their lives.

Freedom makes all the difference. Over the last 15 years, increases in pretrial detention account for 99% of all jail growth. If we want to end mass incarceration, ending wealth-based detention can prevent incarceration before it starts.

Among the powerful tools confronting money bail that are growing in use are community and non-profit bail funds. We are honoured to work closely with The Bail Project, a national nonprofit that provides free bail assistance to thousands of people every year, while working to advance bail reform. Since 2018, The Bail Project has posted bail for nearly 11,000 low-income Americans. With community-based teams in over 20 different cities and counting, The Bail Project is working every day to make a difference, using its National Revolving Bail Fund to disrupt the racial and economic injustices of bail, one person at a time. 

There are other efforts that are also changing this broken system. The National Bail Out collective has led a National Black Mamas Bail Out campaign since 2017, raising significant funds to bail out Black mothers and caregivers while building a grassroots advocacy campaign to end money bail and, ultimately, mass incarceration. The National Bail Fund Network is another network of funds aimed at ending pretrial detention that works through a movement-building lens. All of these are important approaches - and they’re joined by a growing movement of activists, progressive prosecutors, highly skilled impact litigators, digital campaigners, and increasingly savvy lawmakers who share the movement’s goals. 

This “great awakening” (as Van Jones calls it) has helped generate a groundswell of new energy and rapidly growing resources that should give us tremendous hope in this moment. But let’s ensure it fuels our tenacity as well. The US system of mass incarceration costs over $180 billion every year. Those funds are significant parts of the budgets of over 3000 government jurisdictions and fuel the profits of over 4000 companies. Ending money bail will be an essential step, and there are many more to come.