A Movement Demands: Eliminate Money Bail
In 2008, my organization launched a new community organizing model that works with families of individuals caught up in the criminal justice system in Santa Clara County. It’s called “participatory defense.” The idea is that, when it comes to challenging mass incarceration, the best change agents are the people and communities most affected by the problem. When family members get involved and work for just treatment of their loved ones, we can have a real impact on the outcome of cases and begin to transform the landscape of power in the courts.
As we sat down with families under this new model, we began to hear a similar refrain. In overwhelming numbers, people told us that their loved ones remained locked up for the same reason: they couldn’t afford bail. In early 2016, for example, Jeysson Minota was in jail for four months awaiting trial before his mother was able to come up with $5,000 to pay a bail bonds company to secure his release. It turns out Jeysson had to get out so he could get urgent medical treatment for a collapsed lung caused by a mass in his chest. Now, the family owes more than $30,000 to the bail bonds company.
Jeysson’s story isn’t all that rare. It is a shocking fact that in our democracy today, 450,000 of the 2.3 million people held in our prisons and jails have not been convicted of a crime. In California, more than half of the inmate population are awaiting trial or sentencing.
The practice of money bail — requiring defendants to pay a deposit to the courts, usually through a commercial bail bonds company in exchange for release from custody while awaiting trial — is a major factor in mass incarceration. It is also unconstitutional, discriminatory and does not impact whether or not people appear at court dates.
In Santa Clara County, where my organization is based, the proportion of people detained “pretrial” for lack of money to afford bail is 70 percent. Alarmed at the injustice of this number (not to mention the added costs of rampant incarceration), the county is experimenting with new approaches aimed at reducing the effects of money bail.
One of these innovations had its origins in our conversations with families of those who are sitting in jail despite not being convicted of a crime, but simply could not afford bail. Known as the Community Release Project, it involves enlisting community-based organizations to work with defendants on pre-trial release to ensure that they make their court dates and have critical supports (including housing, transportation, etc.) to hold onto their jobs and keep their lives on track. It is a model that already works for people getting out of jail as faith-based and other organizations are engaged to support reentry, and now we’re putting it to work at the front end of the system as well.
Community Release is just one of 17 new policies that the Santa Clara County Board of Supervisors adopted last fall in an effort to end our reliance on money bail. Other changes include a reduction in how long people must wait for a first hearing, as well as a provision increasing the number of people who can be released with citations for minor offenses. In another simple, yet important, change, the county removed the poster by the phones in the jail advertising the various bail bonds companies seeking to profit from defendants’ problems. Now there will be a poster that describes the range of services and support available to defendants along with contact information for the Office of Pretrial Services.
The remarkable thing about implementing these changes is that it hasn’t been a knock-down, drag-out fight. There has been broad support for reform throughout the system, from the District Attorney’s office to the presiding judge to the probation department and public defenders. In 2014, our Board of Supervisors created a Bail and Release Work Group composed of these and other stakeholders along with community representatives. From the start, the consensus among this group was that the current system wasn’t helping anyone, and it was time for change. The unanimity is a consequence of how indefensible money bail is as an apparatus in terms of cost, justice, and logic.
Beyond Santa Clara County, there is broad support for bail reform in California and nationally. Governor Jerry Brown has promised to make reform a priority in 2018. Nationally, Senators Kamala D. Harris and Rand Paul joined together in 2017 to introduce new legislation that encourages states to replace or reform their bail systems. Advocates of bail reform point to the collateral consequences of having to stay in jail because a person cannot afford to pay bail — the loss of employment, housing, and the impact on other family members. In 2016, the PreTrial Justice Institute launched a national campaign called “Three Days Count” to support states that initiate legislation to end money bail systems. In other action, the city and county of San Francisco was sued by Washington D.C.-based Equal Justice Under the Law for incarcerating people because they cannot afford to pay bail. The Center has filed 12 money bail cases in nine states since 2015.
Eliminating money bail is an idea whose time has come. Regardless of politics or party, people are united around that idea that when it comes to issues of justice and incarceration, money shouldn’t talk. It’s time to reform the system so it doesn’t punish people based on their wealth and income and instead gives all people what our Constitution guarantees: equal protection under the law.
Raj Jayadev is director and cofounder of Silicon Valley De-Bug and the Albert Cobarrubias Justice Project.
