“Miss, what happened to Kalief Browder?”
The U.S. Bail System: What it is and Who it harms
Dear Readers,
“Miss, what happened to Kalief Browder?” This was the first question posed to my co-Street Law instructor and me by a very serious and rightfully insistent sixteen-year-old boy before we could even introduce ourselves.1
In that moment, we needed to find the words to explain how it was that a Black boy of sixteen, accused of stealing a backpack was charged as an adult, caged in Rikers Island (a notorious New York City jail for adults) for three years, tortured with solitary confinement for at least two years,2 and repeatedly beaten, and physically and verbally abused, only to be released three years later when his case was dismissed due to lack of evidence.
When Mr. Browder was released from Rikers, the experience had traumatized him so deeply that he took his own life. Kalief Browder was 22-years-old. (Please see the below resources to learn more about Kalief Browder’s story).
Nearly two years after his death, I stood in front of a classroom of Black and Brown teenagers seeking answers from a law student who came to explain the rights they are alleged to have under the U.S. Constitution. How could this happen? “What happened to Kalief Browder?”
The answer is both easy and complicated. The answer is cash bail. The answer is racism. The answer is mass criminalization of poverty. The answer is basing prosecutorial success on conviction rates, not justice. The list goes on.
Today, I address bail. A small, yet significant piece in the process, system, and structure of mass criminalization.
Bail
Bail is a massive topic. This edition provides reliable, helpful resources about bail.
First — what is bail?
Simply stated, bail is the money amount a judge requires a person to pay in order to remain out of jail until their case is resolved (via dismissal, plea, or trial).
Bail is set by a judge when a person is arraigned or has their first appearance. People accused of both misdemeanors and felonies may be assessed bail.
Each state and the federal system has its own bail statute, but generally, judges must find the least restrictive measures to ensure the person’s attendance in court and protect public safety. Factors judges are supposed to consider include, but are not limited to:
nature of alleged crime
risk of flight/roots in the community
danger to the public
criminal history
They are not required to consider a person’s financial status when setting bail. Some judges will consider it, some don’t.
When a person cannot afford the bail assessed, they remain in jail until they can pay, someone in their network can pay, or they resolve their case.
Lives depend on the dissolution of this system. This is a fact, not a hyperbolic statement, as you will see in the resources below and in upcoming editions. It is incumbent upon all of us to learn about the system so that we can be part of the needed change.
To that end, activists, journalists, and scholars have created rich resources to explain bail and all its variations. I amplify that work below. Please take some time to check them out and spread the good word.
As ever, thank you for reading. Please contact me with questions, ideas, and comments.
Respectfully,
Amy
What is bail?
Video Explainers
“How Cash Bail Works",” Vera Institute of Justice: https://www.vera.org/research/how-bail-works
“The Truth About Bail: It Doesn’t Work,” ACLU, available at:
“Ohio Bail Reform Animated Short,” ACLU of Ohio (Nov. 1, 2019), available at:
Podcast Explainers:
Josie Duffy Rice and Clint Smith, “Episode 1: Justice for the Rich, Money Bail,” Justice in America: https://theappeal.org/justice-in-america-episode-1-justice-for-the-rich-money-bail/
5-4 Pod, “San Antonio ISD v. Rodriguez ft. Alec Karakatsanis”: https://www.fivefourpod.com/episodes/san-antonio-isd-v-rodriguez-ft-alec-karakatsanis/
Written Explainers:
Alex Traub, “How Does Bail Work, and Why Do People Want to Get Rid of It?” The New York Times (Jan. 11, 2019), available at: https://www.nytimes.com/2019/01/11/nyregion/how-does-bail-work-and-why-do-people-want-to-get-rid-of-it.html?auth=link-dismiss-google1tap
Stephanie Wykstra, “Bail reform, which could save millions of unconvicted people from jail, explained: Hundreds of thousands of legally innocent people languish in jails on any given day simply because they can’t afford bail,” Vox (Oct. 17, 2018), available at: https://www.vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-inequality
Adureh Onyekwere, “How Cash Bail Works: The cash bail system is unfair to low-income people and people of color, but there are ways to fix it",” The Brennan Center for Justice (Feb. 24, 2021), available at: https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works
Timothy R. Schnacke, “A Brief History of Bail,” The Judges’ Journal (Summer 2018), available at: https://www.supremecourt.ohio.gov/sites/PJRSummit/materials/bailHistory.pdf
What is the private bail bond industry?
“What are bail bonds and who provides them?” Minnesota Freedom Fund, available at: https://mnfreedomfund.org/for-profit-bail-explained
Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System, a joint report by Color of Change and the American Civil Liberties Union’s Campaign for Smart Justice, available at: https://www.aclu.org/report/selling-our-freedom-how-insurance-corporations-have-taken-over-our-bail-system
Jessica Silver-Greenberg and Shaila Dewan, “When Bail Feels Less Like Freedom, More Like Extortion: As bail has grown into a $2 billion industry, bond agents have become the payday lenders of the criminal justice world, offering quick relief to desperate customers at high prices,” The New York Times (Mar. 31, 2018), available at: https://www.nytimes.com/2018/03/31/us/bail-bonds-extortion.html
“The Truth About the Cash Bail Industry,” Color of Change
Bail Data
Anna Maria Barry-Jester, “You’ve Been Arrested. Will You Get Bail? Can You Pay It? It May All Depend On Your Judge,” FiveThirtyEight (June 19, 2018), available at: https://fivethirtyeight.com/features/youve-been-arrested-will-you-get-bail-can-you-pay-it-it-may-all-depend-on-your-judge/
Bernadette Rabui and Daniel Kopf, “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time,” Prison Policy Initiative, available at: https://www.prisonpolicy.org/reports/incomejails.html
Wendy Sawyer, “How does unaffordable money bail affect families?: Using a national data set, we find that over half of the people held in jail pretrial because they can't afford bail are parents of minor children,” Prison Policy Initiative, available at: https://www.prisonpolicy.org/blog/2018/08/15/pretrial/
Bail Reform
Jessica Brand and Jessica Pishko, “Bail Reform: Explained,” The Appeal (June 14, 2018), available at: https://theappeal.org/bail-reform-explained-4abb73dd2e8a/
“Bail Reform: A Curated Collection of Links,” The Marshall Project, available at: https://www.themarshallproject.org/records/1439-bail-reform
“End to Pretrial Detention and Money Bail: An End to Pretrial Detention, Money Bail, Risk Assessment, Mandatory Fines, Fees, Court Surcharges, and Defendant Funded Court Proceedings,” The Movement for Black Lives, available at: https://m4bl.org/policy-platforms/end-pretrial-and-money-bail/
Roxanna Asgarian, “The controversy over New York’s bail reform law, explained: Cash bail disproportionately affects the poor. So why are Democrats pushing back against a new reform law?” Vox (Jan. 17, 2020), available at: https://www.vox.com/identities/2020/1/17/21068807/new-york-bail-reform-law-explained
Community Bail Funds
Community bail funds are organizations by and of the community that raise money to help members of the community pay court-assessed bail amounts so that individuals and families are not exploited by the bail bond industry or left to suffer inhumane conditions behind bars.
For more:
Mary Hooks and Jocelyn Simonson, “Opinion — The Power of Community Bail Funds: They help keep people’s lives from being ruined by exorbitant bail. Efforts to thwart these funds are the true public safety threats,” The New York Times (Aug. 23, 2020), available at: https://www.nytimes.com/2020/08/23/opinion/bail-funds.html
Robin Steinberg, Lillian Kalish, and Ezra Ritchin, “Freedom Should Be Free: A Brief History of Bail Funds in the United States,” UCLA Criminal Justice Law Review (2018), available at: https://escholarship.org/content/qt37s1d3c2/qt37s1d3c2.pdf
Black Mamas Bail Out Action, part of Southerner’s On New Ground
Rest in Power, Kalief Browder
Jennifer Gonnerman,“Before the Law: A boy was accused of taking a backpack. The courts took the next three years of his life,” The New Yorker (Sept. 29, 2014), available at: https://www.newyorker.com/magazine/2014/10/06/before-the-law
Jennifer Gonnerman, “Kalief Browder, 1993-2015,” The New Yorker (June 7, 2015), available at: https://www.newyorker.com/news/news-desk/kalief-browder-1993-2015
Alicia Maule and Yili Liu, “Remembering Kalief Browder a Year After his Suicide and Why Rikers Island Should be Shut Down,” Innocence Project, available at: https://innocenceproject.org/remembering-kalief-browder-year-suicide-rikers-island-shutdown/
“Kalief Browder: A Voice to End Solitary Confinement,” Stop Solitary Confinement for Kids, available at: https://stopsolitaryforkids.org/kalief-browder-lost-to-solitary-confinement/
Time: The Kalief Browder Story, Netflix
The Street Law Program connects law students with local schools to teach young people about the law and our rights. I volunteered to teach Street Law my first year of law school and helped train other law students to teach my second year.
Different news accounts provide different numbers — some 10 months, some two years, and some three years. Regardless, even if it was “only” 10 months, psychologists, activists, and the United Nation would classify that amount of time in solitary confinement as torture. Indeed, “[t]he United Nation's Mandela rules prohibit solitary confinement of prisoners for 22 hours or more a day without meaningful human contact, and prolonged solitary confinement of more than 15 consecutive days.”