Community Bail over Cash Bail

One of my primary platform planks for my run for city council was ending cash bail.

We knew it was a radical concept and most folks would balk at the idea, but the numbers were on our side. The problem was getting folks not impacted by the criminal justice to understand why bail reform was necessary. We felt it was just as important to educate folks about bail reform as it was to push for it.

We began by noting that 60% of the U.S. jail population has bot been convicted of any wrongdoing, but are simply awaiting trial. At issue is the fact, a person who is held in jail pretrial is significantly more likely to be convicted than someone who is not, due to bias against incarcerated persons. Our belief was and remains: No person who has not been convicted of a crime should be held in jail based solely on their financial status.

Our strategy was to introduce legislation that would have instructed the Austin DA Margaret Moore to stop jailing people who cannot afford to pay cash bail in minor criminal cases. Legislation would have given the DA latitude to instruct city prosecutors not to seek a bail payment in misdemeanor and non-violent crimes. For more serious charges, we propose what we are calling ‘Community Bail’, which would allow an organization, faith or treatment community to secure the release of the individual into their care and/or safekeeping.

Studies have shown that most of the people are in jail because of their inability to pay bail set by the court. A 2016 study by the Vera Institute of Justice concluded that the use of the cash bail system disproportionately impacts poor black people. From New York to California cash bail keeps people locked up or prone to accepting a plea bargain for no other reason than they are too poor to make bail.

Ending cash bail is a fundamentally sound step towards decarcerating local jail, without the court bearing the cost and time of magistrating individuals. While bail was not created as a form of punishment, it’s certainly used as one. Even one night in jail can cause people to lose public benefits, healthcare, housing, jobs, and custody of their children. While detained, people have no bargaining power or ability to prove their ties to family and community, forcing many to plead guilty to crimes they did not commit. This results in a criminal record that follows them for the rest of their lives.

Providing bail brings people back to their communities and sends the powerful message that we need a better system — one that does not criminalize on the basis of race and poverty. 92% of defendants who stay in jail until the end of their case because they can’t pay bail will plead guilty, forfeit their constitutional right to trial, and likely go home with a criminal record.

Furthermore, the impact of denying people bail dramatically impacts LGBTQIA people just as it disproportionately impacts people of color. According to one study: LGBTQIA people are more likely to be assessed a higher ail than others because they are seen as greter flight risks and more likely to be a danger to the community based on stereotypes and perceptions that LGBTQ people are not connected families or communities.

We see Community Bail as an opportunity for faith based, social justice and treatment communities to help fight mass incarceration by securing the ‘bail’ or ‘bond’ for individuals with violent crimes. Often the conversation around bail reform or criminal justice reform is centered on drug=related or non-violent offenses, yet a significant portion of the population incarcerated and on parole are for violent crimes. Moreover, when confronted with the opportunity to provide a lower bail for these offenses prosecutors levy quasi-sentences via exorbitant bail amounts. Churches, YMCA, reentry programs are perfect receiving parties for folks who don’t need to return to the environment from where they were arrested from.

Writer | Formerly Incarcerated