Robin Steinberg: Poverty Is Not A Crime

The Bail Project founder on “the country’s history and present of structural racism and enormous economic inequality.”

Robin Steinberg, founder of The Bail Project, has based her life’s work on one underlying, clearcut truth: Poverty is not a crime.

Yet in the United States, where freedom is etched into our constitution, poverty is often treated as such. As a nation, we incarcerate more people per capita than any other country on the planet. What’s even more horrific is that that every night 450,000 people go to sleep behind bars having not been convicted of a crime.

These men and women are caged because they can’t afford the price of freedom: bail.

When Steinberg started her career, she was proud to be a public defender, fighting for the rights and lives of her individual clients. But it seemed that despite her conviction and the hours she spent in the courtroom, the system seemed intent on crushing them, with little regard for their families and communities.

There is a bigger problem, one of social justice, emblematic of systemic failures that drives the cycles of criminalization and poverty. So she started The Bronx Defenders, a public defense nonprofit that provides services to low-income people of the Bronx, and The Bronx Freedom Fund, a revolving bail fund that used philanthropic dollars to pay bail for clients who couldn’t buy their freedom.

She had a new vision of public defense, one that extended legal representation beyond criminal court—a vision to decarcerate America.

Through her work, including public speaking engagements such as her TED Talk, Steinberg is campaigning for real reform, beginning with The Bail Project, a bold, unprecedented national revolving bail fund to fight mass incarceration. But that’s just the start.

NEW YORKERS FOR JUSTICE: How did you come into criminal justice reform in the capacity you did with Bronx Defenders — and what were the main obstacles back then, when it wasn’t part of the national conversation like it is today?

ROBIN STEINBERG: I became a public defender in 1982. The circumstances were very different then. So was the general public’s understanding of criminal justice and the need for reform. It was the era of so-called “get tough on crime” — when politicians got elected by talking about how we needed to lock more people up… It was the language around it, the racism, the mass blindness about what was happening — all of it sort of drove me into criminal defense.

I began my career at the Legal Aid Society as a public defender. Then I worked at the Neighborhood Defender Service of Harlem. In 1997, I started the Bronx Defenders with the goal of creating a new model of public defense. At the time, there was little national conversation about the need to reimagine public defense. Governments were required to fund public defense and that was the main focus — how to get fully funded. Not a lot of people were trying to innovate in this particular space.

So that’s where my career started 36 years ago, wanting to be the best public defender for my clients and eventually trying to reimagine the field and test new ideas. One of those ideas was the Bronx Freedom Fund, which I co-founded with David Feige. Jason and Joe [Flom] helped us start the Freedom Fund at a time when people weren’t talking about bail reform and no one else was willing to fund it. Trust me, we tried. It was Jason and his dad who saw the urgency of this issue and took a chance.

So, as philanthropists, they were really pioneers. And they were igniters. I spent a lot of time after we launched the Bronx Freedom Fund trying to persuade other people and organizations to use our model and start other funds because the need was so great. It didn’t get a lot of traction, quite frankly. And so we just focused on sustaining and growing our fund, the Bronx Freedom Fund, which was housed at the Bronx Defenders at the time. We provided bail assistance to our Bronx Defenders clients. And we began to track the data and analyze it. Frankly, what we learned amazed us. We learned that money is not a necessary incentive for people to come back to court. We learned that being able to fight a case from a position of liberty has a tremendous impact on case outcomes and life circumstances. As public defenders, we had an anecdotal sense about this, but now we had hard data to show it.

This was data that we would not have been able to collect had it not been for the Bronx Freedom Fund and I think it’s had an important impact on the larger field — helping to inform the public and policy makers, introducing more philanthropists to the space and the need for reform. I’m gratified to see that 10 years later, funders are more willing to take risks and support many different amazing projects and initiatives that hopefully will help bring an end to mass incarceration.

And what is going on with The Bail Project, including the partnership with UCLA?

Our dream was to prove that the Bronx Freedom Fund was a viable, sustainable model and tool to combat the front end of mass incarceration. We wanted to show that it was possible to scale it and replicate it wherever it was needed, and we wanted to inspire other people to create their own bail funds.

After a decade of piloting this idea, we were fortunate to get the support of a collaborative of funders and foundations and wealthy individuals, who trusted that we had the experience and expertise to scale what we had done in the Bronx and go to other high-need jurisdictions. With this support, the Bail Project launched in January. We have a national revolving bail fund and we’re in the process of scaling our first round of sites.

The goal is to grow a network of local teams — known as Bail Disruptors — over the next five years, and partner with local organizations and community groups to provide bail assistance to hundreds of thousands of people over the next five years, while collecting national data and stories to support and ignite systemic change.

Our central support team is located in Los Angeles, which is where I am now, and UCLA is one of our institutional partners. We’re incredibly lucky to have an exceptional faculty and group of students who are excited about The Bail Project and ready to roll up their sleeves. This a critical partnership for us.

We continue to raise money in order to scale this project across the country and assist as many people as we can. We’re hiring Bail Disruptors in local jurisdictions to identify people at risk of pretrial incarceration, pay bail, and support clients throughout the legal process. In this process, we are prioritizing recruitment of formerly incarcerated people and community members with personal experience in the criminal legal system. We believe in the importance of building this leadership as those directed impacted by the system bring unique skills and an invaluable perspective to the work.

How do partnerships with institutions like UCLA amplify your efforts?

Having a partnership with an academic powerhouse like UCLA Law School allows us to leverage a wide range of expertise and resources. It allows us to partner with law students and law faculty — who are inspired to work on this project — but also to receive strategic advice on everything from data collection to how we measure impact or navigate laws in different jurisdictions. UCLA has an array of interdisciplinary experts, faculty and students, precisely the research and strategic support we need to scale a project like this.

Partnerships like this give us the ability to move forward more quickly, more effectively, and with a much, much deeper understanding and information about all different areas. How do you leverage this incredible empirical data? What streams of research can best inform site-selection?

In the fall, we’re actually starting The Bail Project practicum, called “Pay or Stay: A history of bail in the United States” at the law school with the goal of engaging faculty and students as we move into the scaling phase of the project.

How has the increased momentum that criminal justice reform and bail reform, especially in New York, affected your work? And where do you see opportunities for others to really increase their effectiveness and impact?

It’s an amazing, inspiring, and staggering moment. The way criminal justice reform is marching forward, and the partners that are coming to the table who actually want to begin grappling with what this system has done to generations of people of color and low-income communities across this country. I didn’t see it coming. I couldn’t be more surprised that we’ve reached this tipping point.

We’ve reached a moment of reckoning in this country where we’re finally willing to grapple with what we’ve done and the damage we’ve caused, not just to individuals, but to their families and their communities in the insanity of mass incarceration.

I could not be more delighted to see what’s happening. I’ve learned that there are unlikely allies out there who are willing to partner with us in the march toward dismantling the criminal legal system as we know it, and I’m learning every day about people I’d never have expected to be supportive of the work we’re doing and feel the same urgency we do.

And so I think it’s important for all of us in this field, particularly people who’ve been in this field a long time, to recognize that this has finally become a national conversation. I think it’s critical that we also recognize, and include in this march towards justice, those who’ve been personally affected by the criminal legal system and mass incarceration, and create paths for their leadership in our organizations. As a good friend of mine likes to say, those closest to the problem are closest to the solution.

I think it’s also essential that we guard against the risk of recreating the same oppressive systems under a different form. You could do away with cash bail tomorrow and, without knowing it, open the door to another system of oppression and systemic injustice like pretrial electronic surveillance. It’s one of the reasons why it’s so key to align with the expertise and leadership of those who have been impacted by the system firsthand.

It is necessary to dwell on this point a little further, because that’s where the current momentum might take us unless we can drive a more nuanced conversation about the issue. All of us in this field have a responsibility to think carefully about what could replace cash bail. Our project is the equivalent of releasing people on their own recognizance with an effective notification system and meaningful supports. Part of what we’re trying to do is show what the alternative could look like.

It’s really important to keep your eye on that, and that’s why we’re launching into different jurisdictions and doing this work with an eye to decarceration as the ultimate goal and true freedom as a guiding principle. We are unpacking how local systems operate and staying vigilant about reforms that could recreating new systems of governmental oppression. But it’s going to take all of us, from the media and the advocates to the activists, the policy makers and the artists, to really think this through and make sure that the reform efforts that are moving forward are genuine and based on the ultimate goal of decarcerating America and reimagining the system.

What remains was the biggest obstacles between us and real reform?

Underlying all of this is the real elephant in the room: our country’s history and present of structural racism and enormous economic inequality — if you look at the criminal legal system, it reflects those much larger social problems.

So we might be making real strides in dismantling the current criminal legal system as it exists, but it will only recreate itself if we don’t grapple with those larger issues around structural racism and economic inequality. And that’s hard because you can’t just fund an end to that. I wish we could! But we have to recognize that while we’re making enormous strides, we still, at the heart of our nation, need to grapple with bigger issues, otherwise we’re going be doomed to recreate these systems in another form.

We must keep this at the forefront of our thinking and take advantage of the current window of opportunity. We’re at a moment when people are finally paying attention to this, in some ways, but I’ve been around long enough, and I’m old enough to recognize, that at some moment attention will turn someplace else, as national attention always does, and that we need to be cognizant of creating sustainable change, and change that goes deep.

The obstacles are the things I alluded to, but also how the public tends to perceive “risk” and “dangerousness.” This is due, in large measure, to who captures the narrative about what’s actually happening in the criminal legal system and what’s not.

I’m constantly going to panels and speaking about this issue around the country, and if I had a dollar for every time a person has asked me about “violent criminals” and express fear that decarceration will make us unsafe. Nothing could be farther from the truth and it tells you a lot about how people form assumptions about these issues and the culture of fear we’ve created. Of course there will be the inevitable stories about someone who gets out of jail and commits a serious crime, but the truth is that it rarely happens and most people in our jails have not done anything that is remotely scary.

That’s why real journalism is so important. That’s why storytelling is so important. That’s why communications are so important. That’s why telling the stories of people who’ve been in the system is so important. It’s how we begin to undo the narrative that people with vested interests in keeping the system the way it is, have managed to capture and perpetuate all these years. It’s time we capture that narrative back.

You’ve touched on my next question in a couple ways, including your mention of prosecutors, so there’s a lot to be said about the influence that organizations have in applying pressure to lawmakers and policymakers in changing laws and whatnot, but ultimately, who holds the most responsibility when it comes to affecting real change, to transferring policy or law into real action and instituting it as ultimately the norm moving forward? Where does that responsibility lie? And how do citizens and activists reach those people?

Everything, of course, starts long before the courthouse steps or the jail house bars. It starts with policing in communities of color and low income communities. And you are right that there are players in the criminal legal system that hold some of the keys to real systemic change. But all of us have a responsibility. I think public defenders could be doing better. I think prosecutors should be held more accountable. And honestly, at the end of the day, it’s still the judges sitting on those benches in black robes that have the discretion in the bail reform space to say “I won’t set that bail. I will release this person on their own recognizance. I believe firmly in the presumption of innocence and actually treating people as such until their case can be adjudicated.”

Judges have to own their role in this crisis. I think that in the criminal justice arena, generally, prosecutors hold an inordinate amount of power — a completely distorted, corrupted sense of power. They can maneuver their power in the bail context but also in the plea bargaining and sentencing contexts. The balance of power is distorted in their favor so they hold a lot of responsibility for what the system looks like. But so do judges.

Judges have the power to exercise their discretion in all sorts of ways, which, I would argue, even in ways that could overshadow prosecutorial discretion. But they choose not to do it. They tend to lack the courage to push back against prosecutors who are abusing their power and use their discretion to equalize the system. They worry about looking “soft on crime” and refuse to act in a manner that forwards real justice because they are afraid of making a mistake and winding up on the front page of a local newspaper — dooming their chances for promotion and/or re-election.

You spoke about data and we see a lot of software in apps and whatnot coming up now, a lot of momentum, especially with the backing of celebrities or high profile individuals who are outside of the realm of criminal justice reform, or traditionally outside of it. What’s the importance of data? Where do you see it playing more of a role? Or where do you see it being scrutinized more heavily?

There’s no doubt in my mind that data is a key part of our strategy, but data is not the answer to the problem. Ultimately, it’s the human stories and our shared human experience that must drive reform and changes from a place of empathy. We are not going solve this problem with an algorithm. We’re not going to solve this problem with just data.

We’ll begin solving the problem of mass incarceration when we take responsibility for what we’ve allowed to happen, and what we’ve allowed this system to do to people of color and low-income communities for generations. This is about a moral reckoning and lived experience, not data. And we will begin to solve this problem through community action and efforts to rebalance a very broken system.

Data is of course critical in driving people to that point, because it can inform us about what’s actually happening. It was our data from the Bronx that began to lay waste to the myth that money is necessary to ensure people come back to court. And data is certainly what can inform and educate legislators and policymakers about what should come next, but data can’t replace the human face of this crisis and that’s what everyone needs to keep in mind. We are talking about actual human beings. People ask me about our goal to bail out an unprecedented number of people and what does it actually accomplish… I’ve represented people long enough to never forget that every number in those statistics you hear is a life, a family, a livelihood — every person is worth the same sense of urgency. It is important to remember that and feel the full weight of this humanitarian crisis we’ve created. It is how you stay in this fight for as long as it takes.

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