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The Price of Freedom

The first thing one notices when walking up to the entrance of the Vernon C. Bain Center (VBC) in New York City is the fetid smell coming from the Fulton Fish Market next door. The road leading up to VBC has no sidewalks—just barbed wire fences. Queens shimmers across the East River.

Some of the inmates at VBC—known as The Boat, since it’s anchored six feet from shore—are serving short-term sentences, from thirty days to a few months, for low-level misdemeanors. The vast majority of its 800 male inmates, however, have landed there because they have yet to pay their bail. One of these men is a young relative of Jermaine Davis.

A stout, middle-aged Bronx resident, Davis looks both exhausted and relieved, like he’s just finished a long hike. He has been crisscrossing the city trying to post bail for his relative. “We’ve been back and forth for a few days, trying to get him out,” he tells me. Davis has been derailed again and again by bureaucratic hurdles. First, the Bronx County Hall of Justice turned him away because he didn’t have a state-issued ID or a pay stub. By the time he returned, his family member had already been transferred to The Boat; Davis was told he could only pay there. When I met him at VBC’s bail window, his relative had been in jail for four days.

“Bail keeps 450,000 Americans locked up every day simply because they’re too poor to pay.”

In the United States, people charged with crimes are often held in pretrial detention unless they can post bail, which is set by a judge. In theory, bail is an incentive to appear in court. The fee is returned when the trial is concluded, and forfeited if the person charged doesn’t show up. But your experience with bail largely depends on whether you’re rich or poor.

When film mogul Harvey Weinstein appeared in court this spring to face charges of rape and criminal sex acts, he paid his $1 million bail with a cashier’s check, and was out of the courtroom within ten minutes. In 2010, when sixteen-year-old Kalief Browder was charged with stealing a backpack in the Bronx, he couldn’t post his $3,000 bail and spent the next three years in jail before his charges were dismissed. Two years later, he committed suicide.

Bail keeps 450,000 Americans locked up every day simply because they’re too poor to pay. Even when bail is set as low as $250, it’s often enough to entangle low-income people in the criminal justice system for months or years. Cash bail is particularly insidious. Some forms of bail allow defendants to pay only a portion of the total, put up valuable possessions as collateral, or cut a deal with a bail bondsman to front the bond for them. This is not the case with cash bail. When a judge sets cash bail, the defendant must pay the full amount out of pocket to be set free. In courtrooms across America, cash bail is frequently set for minor misdemeanor crimes and even traffic violations. Typically, prosecutors push for cash bail, the defense pushes against it, and it’s up to the judge to decide. Each time cash bail is set too high for the accused to pay, someone who is still innocent in the eyes of the law is placed in jail.

Even a brief stint behind bars causes significant collateral damage. People like Davis’ relative lose access to family and employment, and often experience emotional and physical trauma. “The whole process is insane,” Davis said. “It creates a huge strain on the family.”

Being Black or Latino increases the odds of being one of those 450,000 people. According to the Pretrial Justice Institute, courts saddle Black men with thirty-five percent higher bail amounts than white counterparts charged with the same crime and with similar criminal histories. For Hispanic men, that figure is nineteen percent.

And serving time in jail pretrial drastically increases a person’s conviction rate. It makes it three to four times more likely that one will serve a prison or jail sentence after trial, and such sentences are, on average, two to three times longer, according to the Pretrial Justice Institute. Often, defendants choose to take a guilty plea; they are able to leave jail that day but are forced to carry a criminal record for the rest of their lives, making it considerably more challenging to get a job or earn a degree.

Jermaine Davis’ close-knit family can pick up the slack when one of them is incarcerated. And he has a job, at an employment training and addiction recovery center, which allows him to take time off to resolve his relative’s case. Most importantly, he has the money to do so. Most of the 450,000 don’t have people like Davis on their side.

In recent years, the cash bail epidemic has triggered a national movement. Nonprofit bail funds, financed almost entirely by private donations, have opened up from Tulsa to St. Louis, and Detroit to New York, posting bail for those who can’t afford it themselves. Their clients include people like Davis’ relative, awaiting freedom in the belly of the Boat. Two years ago, New Haven joined the map with the Connecticut Bail Fund—an organization taking a radical, intimate approach to bail reform.

During the summer of 2017, I worked at the Bronx Freedom Fund, a non-profit bail fund serving the South Bronx. The team at BFF also founded The Bail Project, an umbrella organization that plans to open 40 bail funds across the nation and bail out over 160,000 people by 2022. This summer, I traveled back to the Freedom Fund to understand the genesis of this national movement, and then to Connecticut Bail Fund’s offices in New Haven, where, I soon learned, organizers are viewing bail in an entirely new light, with very different stakes for the community.

The Freedom Fund’s office, a collection of cubicles on the sixth floor of the Bronx County Hall of Justice, sports a panoramic view of the South Bronx through floor-to-ceiling windows. The organization’s vision is equally expansive: It’s trying to liberate the borough.

When the organization began in 2016, it had a single employee quietly operating in a corner of the office of the Bronx Defenders, just down the street from the Hall. With the Defenders’ fundraising connections and large community of legal advocates to support them, the Freedom Fund has rapidly expanded in the last two years. They’ve hired nine more employees, opened a branch in Queens, and posted bail for 2,020 Bronx residents.

“The Freedom Fund’s office, a collection of cubicles on the sixth floor of the Bronx County Hall of Justice, sports a panoramic view of the South Bronx through floor-to-ceiling windows. The organization’s vision is equally expansive: It’s trying to liberate the borough.”

Donations to the BFF are pouring in. When I last visited, their director was giving a tour to the niece of a donor who’d just written a $100 thousand check. They now can take on almost every client who qualifies.

Outside the offices of the Freedom Fund, the marble hallways of the Hall of Justice echo with the anxious murmurs of those whose day in court has come. Lawyers confer with clients in hushed corners; defendants fidget, waiting to be called; through the heavy doors, a judge presides over a cherry-paneled courtroom.

Each day, the organization receives several referrals from public defenders representing clients who can’t afford bail. Usually, a referral comes after a client has been arraigned, but before they are transferred to jail. When a client is approved for payment, a Freedom Fund employee goes down to their holding cell and offers to post bail. Most clients assume the BFF expects a refund. But in reality, they’ll never have to pay the money back.

For all the legal entanglements and cross-city scrambles that precede it, the act of setting someone free is anticlimactic: the person posting bail presents a cashier’s check to a clerical worker behind a glass window. Paying for someone’s freedom looks more like a trip to the DMV than a singular act of justice.

A few days later, at the initial court date, employees of the Freedom Fund wade through the hallway commotion. One by one, they read out the names of their clients for the day, calling them loudly in the hallways and shout-whispering them in courtrooms. Each client receives a version of the same speech: an introduction to the employee, the organization, and a reminder that the only thing the Freedom Fund needs is their continued attendance at court. Every meeting between a Freedom Fund representative and a client in pretrial detention ends with a simple question: “Do you need our help with anything outside of bail?” Some clients are in search of a job, some need help finding housing, some are looking for affordable health care, and some just need a pre-paid phone. These people are pointed towards a client advocate like Yonah Zeitz, a full-time case manager and bail payer.

The fund’s client advocacy branch exists because paying someone’s bail doesn’t solve all their problems. “If they’re not able to get stability once they’re out,” Zeitz asks, “then what’s the point of paying their bail?” In the immediate aftermath of pretrial detention, clients typically need help with material needs: finding a job, a place to live, or someone to look after their kids. The Fund tries to connect them to the resources they need to get back on their feet post-detention.
Through The Bail Project, the Freedom Fund is expanding its model to other cities where cash bail is a pervasive problem. But New Haven’s bail fund isn’t part of this growing network; it stands alone. The organization demonstrates a radical approach that could fundamentally change how people in New Haven fight for justice.

The Connecticut Bail Fund (CBF) occupies a single, street-level room on Grand Avenue in Fair Haven. The space inside is as modest as the unassuming brick façade. A small waiting area, with wooden floors and simple chairs, takes up most of the room; the desks of its two employees are shoved towards the back. Compared to the Hall of Justice, it feels much more inviting.

On Wednesday nights, CBF’s office hosts a support group for people the organization has bailed out and their loved ones. The visitors pile into the modest space, hoping either to strategize about their legal cases or simply vent about their troubles. They share stories of aggressive correctional officers, insensitive lawyers, and bullheaded judges.

This past April, Sharon* was arrested for assault and disorderly conduct (she wished to remain anonymous; Sharon is a pseudonym). She couldn’t afford her $2,500 bail. After a week in jail, she received a visit from Ana María Rivera-Forastieri, the co-director of CBF. Rivera-Forastieri explained that the bail fund was an organization dedicated to helping people like Sharon, and told her that if she accepted their offer to pay bail on her behalf, she would be free the next day. She eagerly accepted.

Sharon feels she has been given a precious opportunity—one that she doesn’t want to waste. “I’m in women’s wellness, relapse prevention, anger management, those types of things, so that my time outside of jail is actually being put to use,” she said. Programs like these are often mandated by a judge. Sharon attends each of them voluntarily.

Sharon is part of CBF’s support group. Giving support at these meetings means as much to her as receiving it. “I think that it’s also important for a lot of these people getting out of jail to see that there’s someone who’s been formerly homeless, and who’s been in a lot of those crappy conditions, and is still fighting a case, and can still find a way to stay sober,” she said. “I just want to encourage others that it is possible.”

CBF has bailed out 140 people since its founding in 2017. Their organization is smaller than the Bronx Freedom Fund, and eschews The Bail Project’s sweeping approach. That’s intentional: CBF’s work hinges on intimate, prolonged collaboration with formerly incarcerated New Haveners, whether through support groups, rallies, or a performing arts group that started meeting biweekly this summer. “They’ve been learning about how to use the story of self,” Rivera-Forastieri said. “At every meeting, they talk about what they’ve experienced in the community, living on the streets or having lived on the streets.”

After bail is posted, the organization pushes to provide its smaller, tight-knit group of clients with opportunities for activist engagement and self-expression, placing them at the forefront of their community. The strength of the Freedom Fund lies in its individual case management, in connecting individual clients with the material resources they are seeking as they exit the criminal justice system. CBF’s strength, in contrast, lies in the comfort that Sharon finds in attending the CBF’s weekly meetings—a comfort that is rooted in the emotional support fostered by a close-knit community.

The different approaches of CBF and BFF mean that the two organizations have necessarily diverging end goals. BFF and The Bail focus on quantity. “Our mission, first and foremost, is we want to bail out as many people as humanly possible,” said Camilo Ramirez, The Bail Project’s communications director. “And we want to do that because the human cost of waiting is too great.” They want to galvanize a national movement, rather than focusing solely on a single community.

To their staff, the practice of cash bail causes the systematic destruction of communities, and deconstructing it presents the swiftest path to empowerment. “Community building cannot occur at all while community members are incarcerated,” said Alex Anthony, former director of BFF’s Queens Branch.

As a result, a key part of The Bail Project’s work involves legislative reform. “We feel very optimistic that bail reform is the one battle that we might win in the criminal justice system,” Ramirez said. Since 2012, almost every state legislature has addressed pretrial injustice. Illinois now requires a rehearing within seven days for anyone held on cash bail, and judges in New Jersey are required to employ a risk assessment tool to discern whether or not a defendant should be released pretrial. The Bail Project is working to back more legislation like this with an even more radical end goal: to end cash bail.

Connecticut, too, has enacted bold reform. Legislation passed last year made it illegal for judges to set bail on misdemeanor cases unless the defendant has a long history of missing court dates. That same bill prohibited judges from setting cash-only bail, meaning people in New Haven will never have to pay the entire bail amount up front, out of pocket: they can either pay a portion of their bail amount (usually around ten percent), or enlist a bail bondsman to help them pay.

As Senator Bob Godfrey explained on the floor of the State Assembly, “If you’re a millionaire, [a $2,000 bail] is half a day’s pay, and if you’re making minimum wage, is 25 days’ pay. I don’t think that’s justice for anyone, let alone for all.”
Just over 3,300 people in Connecticut were in pretrial detention as of December 2016, according to a 2017 study by the Connecticut Sentencing Commission. In New York City, meanwhile, an average of 7,100 people were held in pretrial detention on any given day in 2017, according to data released by the city’s Department of Corrections this March. Last year’s changes could propel Connecticut forward.

Even though the recent reforms may help their clients, CBF doesn’t focus on lobbying. According to Rivera-Forastieri, when the voices of formerly incarcerated people aren’t prioritized, “bullsh*t reform gets passed in the legislature that has little to no effect on the ground. Our objective is to build power in communities. If that’s what people want, they should be leading that conversation.”

For example, CBF’s clients haven’t shown a strong interest in pushing for the total elimination of bail, so the organization hasn’t thrown its weight behind that kind of proposal. “To try to organize people around bail abolition, specifically, I think would feel coercive and not really meeting people where they’re at,” co-founder Brett Davidson explained.

This mantra—meeting people where they’re at—traces back to CBF’s founding. All four of CBF’s founders were Yale students. When they received the seed money from Yale necessary to jumpstart the organization, their first order of business was conducting listening sessions throughout New Haven. They wanted to hear from formerly incarcerated people about their ideal bail fund, an approach that would guide their game plan. To ensure the organization would be truly led by New Haveners, they hired Rivera-Forastieri, a bilingual community organizer with a law degree who had worked with Junta for Progressive Action, a local nonprofit that advocates for New Haven’s Latinx community.

“When Tiheba Bain was released in 2007, she remembered, ““I came home with the clothes on my back and maybe $100 in my pocket. Maybe.” But she also had a head full of ideas of how the criminal justice system needed to change.”

In sharp contrast to The Bail Project, CBF isn’t fixated on bailing out as many people as possible. The way to effectively serve New Haven, according to the Connecticut Bail Fund, is to give its clients a sense of ownership over the organization. “We could be bailing out many more people a week if that was our sole focus, but that’s not our sole focus,” said Rivera-Forastieri. “Organizing and building power is our number one focus.”

To CBF, a bailout is a crucial transition point at which the organization can help start a process of transformation, placing criminalized people in control. “We form relationships with people in crisis moments and build trust that way,” explains Davidson. Those relationships allow their clients to leverage CBF’s resources towards social justice causes across the board. In 2017, the CBF mobilized local activists to protest the lack of housing resources in New Haven; this past July, they helped organize a rally to abolish ICE. Later that month, CBF helped bring together an event that exemplified its philosophy.

Tiheba Bain has never applied for a job online. Classified ads were still the norm when she entered federal prison in 1997. When she was released in 2007, she remembered, “I came home with the clothes on my back and maybe one hundred dollars in my pocket. Maybe.” But she also had a head full of ideas of how the criminal justice system needed to change—especially for women. For four years, Bain commuted from Bridgeport to Manhattan in order to work and receive her degree in Psychology and Women in Criminal Justice from the City University of New York.

This summer, Bain organized an event with the support of a sprawling network of community organizations and nonprofits, including a local immigrants’ rights organization, Unidad Latina en Acción (ULA); Planned Parenthood of Southeast New England; and the National Council for Incarcerated and Formerly Incarcerated Women and Girls. The CBF gave her a space (First and Summerfield United Methodist Church on the New Haven Green), secured funding, and connected her with community members interested in attending the town hall. In mid-July, thirty community members gathered with representatives from these groups to discuss Bain’s biggest ambition: “‘How can we end mass incarceration for women and girls? How do we get there?’”

While The Bail Project wants to mobilize communities across the country in order to eliminate cash bail, the Connecticut Bail Fund wants to pay bail in order to mobilize the community. The cash bail system keeps low-income people locked up until trial, often for months or years. Through CBF’s model, people like Sharon and Tiheba Bain are taking charge.

Supporting those community members matters more to Davidson and Rivera-Forastieri than the number of people they bail out. “We want to focus our resources on building up a lot of leaders in our community who can develop the work that we do and who can speak about their experiences,” Davidson said. “That’s the main vision for the future: to create a sustained community organizing force.”

– Isaac Scobey-Thal is a senior in Hopper College.

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