How Cash Bail Creates a Two-Tiered System of Justice

Cash bail was designed as a means of conditional release that incentivized an arrested individual to return for a trial. But on any given day there are nearly 500,000 people being held in jail cells around the United States, awaiting their day in court from behind bars because they can’t afford bail. Even if they are eventually exonerated, the economic and personal costs of pre-trial incarceration can be significant—and those costs are disproportionately levied on the poor and people of color. We talked to Kaitlin Koga ’17, the chief of staff for the Bail Project, an organization that is paying bail for those who cannot afford it while advocating for an alternative model that would end cash bail.

Q: What is the Bail Project?

The Bail Project is a nonprofit that has paid over 13,000 bails for low-income community members who would otherwise be held in pre-trial incarceration. When I joined the Bail Project out of SOM in 2017, there was a staff of five and we were working out of an apartment. Now, we are a national organization of 100, with 20 offices across the country.

Q: Why is the Bail Project needed?

We talk about the presumption of innocence, yet we allow people to be incarcerated before they are convicted because they don’t have money. It varies jurisdiction by jurisdiction, but in most place and for many charges, if you can’t pay bail and can’t afford the fees charged by the bail bond industry, you stay in jail until your court date. That can be days, weeks, months, or more.

Let me give a sense of the impact of pre-trial incarceration. I met a young woman in Tulsa two years ago. She is a Black woman, a single mother of two. She had gone through some incredible hardship, including living out of her car because she was homeless, but was really on the verge of turning her life around. She had a new job and had signed a lease on an apartment. Before she could move in, she was arrested because a police officer said he had detected the smell of marijuana around her car at a public park.

She was charged with driving under the influence even though her car was parked. Her kids were taken away from her. She lost the job. She lost the apartment. All of her hard-earned progress just vanished because she was arrested and didn’t have the money for bail.

The Bail Project paid bail for her, and she found a new job, figured out a new living situation, and regained custody of her kids. But do we really want a system where someone has to go through that because a police officer thought he smelled marijuana around a parked car?

Until you start to really look at the facts and realize the scale of what is happening, it is hard to conceive that this is how the United States handles things. Between the early 1990s and 2016, the jail population has grown from an average of about 250,000 to nearly 500,000 people. Pretrial detention accounts for over 99% that growth.

The Bail Project has bailed out women to let them give birth outside of the jail. Can you imagine having to experience pregnancy in jail? There are still places where women are giving birth in shackles in the jail hospital.

There are tragic cases of people who weren’t bailed out that have gotten national attention. Sandra Bland was pulled over for not turning on her blinker. She was verbally harassed by the police officer who drew his gun and said, “I will light you up.” She was arrested, put in jail, and committed suicide. Kalief Browder spent three years in Rikers Island, beginning when he was 16, for allegedly stealing a backpack. He never got a trial. He also ended up committing suicide.

We should interrogate the assumption that people going into jails or prisons are broken or deviant. Too many people getting sucked into the system are normal, regular, everyday people who are being charged for really outrageous reasons.

Imagine being arrested and put in a jail cell knowing all the things that are going on outside, but you can’t do anything about them? Who can drop everything to take care of your kids? What will your boss do if you don’t show up for work? What if you are the sole provider for your family? How will you pay the rent?

Imagine the psychological and physical harm that you might be facing. Our jails are notoriously unsafe places. About 40% of jail suicides and homicides occur within the first week of someone being incarcerated. All that has been amplified in the time of COVID. There’s anxiety about going to the grocery store these days. Imagine that you’re in a jail cell where social distancing is not possible. There are no masks, no hand sanitizer, no ventilation. You are exposed to everyone else who is cycling in and out of the jail cell.

I think it is a useful exercise for each of us to ask ourselves. If you were so unlucky as to be swept up by police, would the system resolve your case fairly? Do you think your answer depends on the color of your skin? On whether you have money or not?

Q: What happens when people get their bail paid by the Bail Project?

When people can fight their cases from a position of freedom, depending on jurisdiction, 30% to 50% have their cases dismissed altogether. I think that raises questions about whether they should have been arrested in the first place.

As we go deeper into the data from the people we’re working with, one of the things that we’ll be tracking is how often judges decide that instead of imprisoning someone who violated a city ordinance, the appropriate penalty is a fine or citation. For charges where people don’t end up spending any time in jail or prison when their case is concluded, why should they be subject to pretrial incarceration?

Q: How does the approach in the United States compare with other countries?

The United States incarcerates more people than any other nation in the world even though places like China and India have far larger populations than we do. The Prison Policy Initiative compared per capita incarceration rates among founding NATO members in 2018. The United States incarcerated 698 per 100,000 people. The next highest was the UK with a rate of 139 per 100,000 people.

Our incarcerated population has increased from around 325,000 in 1970 to nearly 2.3 million today. Our courts have not been designed to process that many people. We do not have enough judges, prosecutors, or public defenders to handle all of the cases.

Bail and pretrial incarceration enable mass incarceration to exist without overtaxing the court system. When people cannot afford bail, there’s an extremely strong incentive to accept plea deals even if they are not guilty.

However, a desperate decision to plead guilty can have rippling consequences. Having a criminal record can affect job prospects, housing, access to education loans.

When people plead out, prosecutors are seen as successful and the cases move off of the docket. That pattern doesn’t look as good when we understand that many charges would have been dropped by prosecutors rather than fought in court or dismissed by a judge because there isn’t enough evidence.

Q: What about the need for public safety?

We believe other models better address public safety, invest in communities as a means to working on root causes, and have equitable outcomes for all people.

The country has made a huge investment in police. As a result, the police have expanded their focus from violent crime to a lot of quality-of-life offenses such as loitering, subway turnstile jumping, or trespassing charges for people who are homeless. Arrests for smaller infractions creates a need for somewhere to hold this new population and we’ve spent billions on jails and prisons to meet that need.

Today, many people see the War on Drugs as criminalization of a public health problem and tough-on-crime rhetoric as racialized fear put to political use by both parties. Both efforts were key to the massive increase in incarceration and to disproportionate prosecution of black and brown people.

Q: How are communities of color impacted?

This is a moment when we are talking and thinking about racial justice. It is really important to recognize the racial dynamic of mass incarceration. A famous study estimated that a Black man born in 2001 had a one in three chance of being incarcerated. Just sit with that for a moment. Think about what that means about how our country criminalizes people.

We know, for example, that people across all races use drugs at roughly the same rate. Yet to an extraordinary degree, the people who are prosecuted are from communities of color.

Scholarship in this field shows the connection running from slavery to Jim Crow to mass incarceration today. We have criminalized many everyday actions and really built a system that punishes people for being Black.

The Bail Project is trying to shed light on the ways poor people are treated in the criminal justice system. We’re combating an economic issue, but in this country the economic issue is a racial justice issue.

In addition, there are other intersections of identity as well. Trans folks routinely experience over-policing. Women account for a large percentage of the growth in incarceration even if they’re a smaller proportion of the population. Women are also uniquely impacted by bail because gender justice is an economic issue, too. Women earn less money than men for the same work. They’re often the sole providers in their families, which means they may be less able to fundraise for their own bail.

Q: How does the Bail Project navigate its immediate and longer-term goals?

We’re trying to disrupt the system of mass incarceration on two levels. We are trying to make sure no one ever has to sit in a jail cell because they can’t afford bail because that is impactful at the individual level.

At the same time, we are trying to create a world where the default is freedom. Systemic change will require a cultural shift where enough people understand the current system as failing and can imagine something different. It requires people voting for prosecutors, district attorneys, judges, and lawmakers who will support change.

We’re working to present an alternative that we can move toward. We’ve published a policy white paper, “After Cash Bail.” We’re gathering data to prove that alternative models work. An approach we call community release with support has a default of pretrial freedom while providing wraparound services that might look like a text message providing people with their court date, transportation assistance to get to court, or help arranging childcare.

Over 90% of our clients make their court dates. One of the imagined core purposes of cash bail is to make sure that people come to court. These folks have not put up any money to the Bail Project or to the court system. They’re coming back to court because, through the Bail Project, they’re getting the support that they need to do so.

I do want to note that we are working to promote models that get rid of bail, as opposed to building systems that might look marginally better but perpetuate many of the same harms, such as electronic monitoring, where if you pay $350 for an ankle monitor bracelet, you can go home. If you can’t pay for it, you stay in a jail cell. As with bail, someone who can afford the fee is punished differently than someone who cannot.

I think it goes back to a core question. Is everyone being treated equitably throughout the system? I think if we stay focused on that we can address the goals of public safety, community investment, and equitable outcomes for all people.

Q: What were the tools you went to Yale SOM to develop? How have they played out in your work?

Before Yale SOM I had spent all my time in the nonprofit sector. I worked with really impactful, small grassroots organizations. I love those places; I find them so powerful and valuable. But every one of those organizations was financially under-resourced. And as much good as they do, they were not achieving everything they wanted to achieve.

Looking at how many people are incarcerated, it’s clear this is a massive problem that needs a massive response. Scale work is really challenging. So I wanted to really have a holistic view of how to support the growth of a resilient organization that could be working on these issues at scale, in collaboration with other organizations and with government where that’s helpful. To do that I needed to understand finances, human capital, organizational behavior, the economics in the market, and how all of these things are at play as an organization grows.

I was worried that it would be a hard sell to get business schools to understand why I would want to go through an MBA program to work on issues of mass incarceration. But SOM has a really strong acknowledgement of and belief in organizations geared towards social change.

It ended up being an amazing experience. I got those core skills I needed. And I was able to customize the program by taking clinics at Yale Law School focusing on policing and criminal justice. I also worked on consulting projects to improve policies at the New York Mayor’s Office of Criminal Justice and the Connecticut Department of Corrections. It was a unique opportunity to get both management skills and perspectives from other disciplines and practitioners.

I came away prepared for my practical goal of building an organization that can work on this issue at scale. Of course, there are going to be things that you have to learn as you grow. But that theoretical underpinning from SOM helps me have the confidence to take on the full scope of things that I need to be working through. And as I do it, there’s a lot of support from other alumni who are in different positions but working on similar challenges.