The Future is Now 2.019: Reforming the Cash Bail System with Robin Steinberg and the Bail Project

Interviewed by Kenny Matuszewski

Kenny: Where do you work and what did you practice?

Robin: I am the CEO of the Bail Project, a national non-profit organization on a mission to combat mass incarceration by transforming the pretrial system in America. Pretrial detention is a key driver of jail growth and racial and economic disparities. Our project takes direct aim at the front end of this system through a national revolving bail fund that provides free bail assistance to thousands of people each year, while we work to steer entire jurisdictions away from cash bail and incarceration. Using data, stories, and research, we aim to motivate broader judicial use of release on recognizance with effective court notifications and needs-based support. Through these efforts, we seek to end wealth-based detention, while ensuring that the current system is not replaced with something just as bad or worse.

Kenny: Your presentation discussed bail reform. What problems are there with the current bail system in criminal cases?

Robin: The current cash bail system creates a two-tiered system of justice: one for the wealthy and one for everybody else. This is fundamentally unfair. Not only does it tie due process and freedom to financial ability – creating a coercive lever that can force poor people to forfeit their right to a trial – but it also perpetuates structural racism in the criminal legal system.

Our Constitution demands a presumption of innocence for anyone who has not yet been convicted of a crime. However, the bail system erodes the universality of that presumption and turns it into a luxury. The result is automatic jail if you’re poor. And make no mistake, jail is a terrifying and dehumanizing experience. Pretrial detention harms people’s mental and physical health, not to mention their families and livelihoods. In three decades as a public defender, I saw countless people lose their kids, their homes, their hard-earned jobs, and education opportunities . . . all because they had to sit in jail for weeks and months on end waiting for court dates.

Many people who have not been impacted by this system assume that if you are in jail, it must be because you’re guilty of something. It usually comes as a shock that our jails are filled with people who are presumed innocent under the law but cannot afford bail – the price of their freedom.

Kenny: What has been done to reform the bail system in the past? Were these efforts successful?

Robin: For generations, families, communities, churches, even entire neighborhoods, have come together to try to raise bail money when their loved ones have been put in jail. Let’s not forget that this system exists in a historical continuum with slavery. In this context, bail funds have been used as a tool in a long struggle for justice and true freedom. What we have done through the Bronx Freedom Fund, and now with The Bail Project, is develop a philanthropic model that leverages the revolving nature of bail money to make this strategy sustainable at scale and for the long haul to systemic change. The success of our program has allowed us to demonstrate that money is not what makes people come back to court. By developing a portfolio of sites in a wide range of jurisdictions and contexts, we’re building strong evidence for a pretrial alternative that rests on a presumption of release, while developing strategies and best practices to support people during the pretrial process.

There have been state-wide efforts to reform the bail system, most recently in New York State and California. While some of these reforms limit the use of cash bail to a narrow category of charges, others replace the entire system with policies that could prove just as harmful, including the implementation of pretrial algorithms that reduce people to statistical risk scores. While I feel cautiously optimistic that we will end wealth-based detention, it is essential that we remain critical and vigilant of new alternatives that don’t address the larger systemic problems of mass incarceration and structural racism.

Kenny: Before founding the Bail Project, you served as a public defender. What motivated you to switch from that path and work on bail reform full-time?

Robin: Previously, I spent 35 years, my entire career, as a public defender. For 20 of those years, I was the executive director of The Bronx Defenders, which I founded in 1997. During that time, I harbored a fantasy that one day I would find a way to stop incarceration on a massive scale. I had seen so many of my clients broken by incarceration, their families torn apart, their futures stolen by a system that overpoliced their communities, and criminalized poverty, drug addiction, and mental illness. I even thought about becoming a judge but realized I would probably only last 6 months before they threw me . . . I decided to focus on bail because bail is the single most consequential decision made in a criminal proceeding. How bail is set can determine everything.

I had already been experimenting with a model that would allow us to disrupt the unchecked power created by unaffordable cash bail. In 2007, I co-founded a bail fund called the Bronx Freedom Fund, which worked in partnership with The Bronx Defenders to provide bail assistance for low-income residents of the Bronx. We also collected data about the impact of this intervention at a systems level. Over the course of 10 years, we saw our clients coming back to court even though they had no financial skin in the game, and we saw dismissal rates go up dramatically as people were able to get their day in court from a position of liberty. This created a strong proof of concept for The Bail Project, our attempt to take the learned lessons and scale this model of direct assistance across the country, adapting it to the needs of different communities, and ultimately using it to advance reforms that end wealth-based detention and make bailouts no longer necessary.

Kenny: What issues does the Bail Project focus on and specialize in?

Robin: We focus on preventing the harms of pretrial incarceration and demonstrating a pretrial alternative that treats people with respect and dignity, and does not rely on cash bail and incarceration. We call this model Community Release with Support, a version of release on recognizance with the added supports of effective court notifications, referrals to voluntary social services, and transportation assistance.  Our organization consists of a central support office and a growing network of local teams, currently in 13 jurisdictions across the country, who provide bail assistance, implement our model of pretrial support, and work with our partner organization to advance advocacy efforts. Each local team is composed of advocates from the community, many of whom have had direct experience with the injustice of bail and incarceration. Our central support team manages the revolving bail fund and works on strategic site selection, research, data collection, and media advocacy, so we can leverage our experience on the ground for larger systemic reforms.

Kenny: Where has the Bail Project been launched?

Robin: Currently, we have sites in Tulsa, St. Louis City and County, Louisville, Spokane, San Diego, Detroit, Baton Rouge, and Indianapolis, among others.

Our goal is to create a national portfolio with representative sites. When we look at prospecting a new city or town, we’re not only looking at the size of the pretrial population, but also legal, demographic, and political factors that could be relevant to other jurisdictions, so the lessons and evidence from one Bail Project site can be leveraged for advocacy elsewhere.

Kenny: Are there plans to further expand the Bail Project? If so, what are the next planned locations?

Robin: We anticipate operating about two dozen sites in the next few years. Recently, we opened a branch in Baton Rouge and our newest branch is in Chicago. We are also launching in Cleveland this summer, and are prospecting sites in Texas.

While we can’t get to every jurisdiction, we are very strategic about site selection in order to leverage local experience for maximum impact in a region or jurisdictions with similar features. For example, our experience in Spokane, WA, could be useful for advising jurisdictions with similar population densities, say in Alaska. We are also looking at the unique impact of the bail system on specific populations. Our site in Tulsa focuses on serving women. Our San Diego site focuses on immigrants in the federal system. We’re also currently prospecting jurisdictions where Native American populations are disproportionately impacted.

Kenny: A few states have already implemented bail reform. How has this affected crime and incarceration rates?

Robin: Reform has come in a variety of forms and at different levels of government. In the case of New Jersey, to use a recent example, the long-term impact on incarceration rates and racial disparities remains to be seen, but the impact on crime rates is clear: bail reform does not lead to higher crime rates. In fact, crime rates in New Jersey have plummeted since bail reform passed. National research is also clear that pretrial detention actually increases rates of re-arrest and recidivism, which makes sense given the harmful and destabilizing impact of even a few days in jail.

Nevertheless, the politics of fear are still very much at play in preventing real reform. So it’s essential to remind people to look at data and the larger trends. Crime rates are falling as we decarcerate. That’s a fact, but sometimes people wind up focusing on the rare and frightening cases that are sensationalized. It might drive TV ratings, but it is distorting and leads to policies that legislate around the exception. Some of the worst atrocities in the criminal legal system have been borne out of fear, exceptions, and prejudice fueled by how tragedies are sometimes exploited and weaponized.

The wealth-based pretrial detention has devastated lives, families and entire communities. It has helped otherize everyone who is poor and touched by the criminal legal system, disproportionately harming communities of color, LGBTQ people, Native Americans, and other marginalized groups. It has fueled an enormous bureaucracy of punishment that implicates all of us morally and economically. Taxpayers spend more than $14 billion annually to jail people who are presumed innocent under the law but cannot afford bail. Imagine what we could do with that money. We could invest in genuinely restorative measures, healthcare, and schools.

It is intolerable, and I hope people can recognize it. People across the political spectrum are beginning to recognize the insanity of a system that ties due process and freedom to financial ability. We need to build on this momentum and get reform right.

Kenny: What results have you seen for clients using the Bail Project?

Robin: There is nothing better than watching someone return to their community and into the arms of their family, seeing someone return to their job, going back to class, and caring for their children. Urgency about the human cost of this crisis is what drives our project at the core.

In terms of results, just like in the Bronx, we’re seeing our clients come back to most of their court dates. Sometimes there are obstacles, like transportation, child care, or medical emergencies, and we actively work with other direct service providers and the courts to support people when this happens. In our inaugural sites, we’re also beginning to see cases close with dismissal rates that show how freedom makes all the difference.

Kenny: What is your ultimate goal for the Bail Project?

Robin: Our project proves that money is not what makes people come back to court. Our goal is to ultimately put ourselves out of business, having demonstrated that money and profit should have no role in criminal justice, and leaving behind a blueprint for how to support people during the pretrial process. I speak for myself and all my staff in saying we cannot wait to see a system where bailouts are no longer necessary. At that point, systemic reform will be far enough to the point where the tools of The Bail Project are no longer needed.

Kenny: How can newer attorneys assist in the bail reform movement both locally and nationally?

Robin: It’s important for young lawyers to be proximate to the problem. If they don’t practice as a prosecutor or public defender, I recommend that young lawyers sit in the criminal courtroom some day and watch the proceedings. We need to educate ourselves about this issue, to watch and be appalled and finally, to feel the urgency of these injustices and want to do something about it.

Young lawyers can also organize local fundraisers or bail funds. There are movements of people organizing these types of activities and serving as volunteer court-watchers. We can use our knowledge as lawyers, and our power as voters, to ensure local elected officials reflect our desire to reform the pretrial justice system. In this regard, it is important that we think critically about reform so we don’t end up replacing one bad system with another. Systemic harms try to recreate themselves in another form. All the progress we make on the cash bail system could be lost to electronic monitoring, risk algorithms, and privatized or probation-like pretrial services. So, stay vigilant of replacement systems as well.

Young lawyers can also contribute to bail funds by donating, volunteering to work in communities affected by the cash bail system, and becoming well-informed voters when deciding who to support in races for district attorneys, judges, and policy-makers. Make sure bail and criminal justice reform are on the platform for any candidate. Get local bar associations involved, so we can also have this dialogue with judges and prosecutors. They hold the power when it comes to how bail is set. We must demand that no one is sitting in jail solely because of poverty.

Kenny: Do you have any last pieces of advice for young lawyers?

Robin: Remember, what happens in the criminal legal system, whether you are a lawyer or not, implicates all of us as Americans and people of conscience. How the criminal legal system treats people at every stage of the process implicates each and every one of you. One out of every two American families has had a family member incarcerated. We need to care about this and hold ourselves accountable because these are the things that ultimately define us as a society.

About Robin:

robin.jpgRobin Steinberg is the founder and CEO of The Bail Project, an unprecedented national effort to combat mass incarceration by transforming the pretrial system in the US.

Over a 35-year career as a public defender, Robin represented thousands of low-income people in over-policed neighborhoods and founded three high-impact organizations: The Bronx Defenders, The Bronx Freedom Fund, and Still She Rises. Robin is a frequent commentator on criminal justice issues and has contributed opinion pieces to The New York Times, The Marshall Project, and USA Today. Her publications have appeared in leading law and policy journals, including NYU Review of Law & Social Change, Yale Law & Policy Review, and Harvard Journal of African-American Public Policy, and she has contributed book chapters to How Can You Represent Those People? (Palgrave 2013) and Decarcerating America (The New Press 2018). Robin is a Gilbert Foundation Senior Fellow of the Criminal Justice Program at UCLA School of Law.

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