Incarcerated Until Proven Guilty? How The Brooklyn Community Bail Fund is Joining in the Fight for Freedom

Brooklyn Community Bail Fund
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With over 8 million people living in New York City, many nonprofits and activists alike have joined in the fight against an unequal criminal justice system in the United States. In 2015, The Brooklyn Community Bail Fund (BCBF), a nonprofit was founded as part of these efforts, specifically focusing on the systemic inequality centered on money bail. By attaching people’s freedom to a monetary value, the bail system has meant that those who can afford to pay are free, and those who cannot remain incarcerated.

Money bail is the commonly accepted practice of turning over cash to the courts to ensure one will return to future court dates. Money bail has become one of the systems targeted by social justice activists and organizations, including BCBF. If a defendant cannot pay money bail, then he or she is expected to sit in prison through the pendency of the case, even though our legal system today says those people are “innocent until proven guilty.”

The population awaiting trial due to an inability to pay bail makes up 60% of those in jail today. This statistic alone reiterates the need that BCBF seeks to address. Many low income individuals who cannot afford bail are faced with two problematic options when convicted of a misdemeanor: plead guilty or spend months in jail awaiting trial. Many low income individuals plead guilty of crimes they did not commit in order to escape jail, and while the short term benefit of release is great, this ensures they have a criminal record and often holds them in the throes of poverty and the hands of the criminal justice system. This extremely difficult choice, to remain in jail and fight for innocence or accept a plea to gain immediate release from jail, is not one faced by nearly as many wealthy or middle class people.

The BCBF highlights this inequity: “The result [of monetary bail] is a two-tiered system of justice: one for those who have and one for those who do not,” the organization notes on its public site. This unequal system of justice drew a lot of people into the fight against bail and in support of BCBF. When asked why they support this cause, a board member stated “My sense of fair play was offended–we’re all presumed innocent until guilty, but folks who couldn’t afford bail were going to jail because they couldn’t pay.”

Around 2015, after the protests in Furgeson, Missouri, and Baltimore, conversations about police brutality increased, and the perceived need for criminal justice reform grew immensely. This was also when the BCBF gained clients and began demonstrating the harmful effects of bail through quantitative studies. By this point, the BCBF had become the largest charitable bond foundation in the country and played a key role in advocating for the historic New York law that would eventually eliminate cash bail for misdemeanors. The BCBF also provided support and guidance for similar bail funds that popped up all around the United States.

In New York, the numbers reveal the difficult situation and additional pressure to plead guilty for those who cannot afford bail. For instance, only 40% of those who are out of jail on bail plead guilty, while 90% of those in jail plead guilty. In addition, those charged with a misdemeanor are nine times more likely to plead guilty and have a criminal record if in jail awaiting bail. This confirms the likelihood of a guilty conviction for those in jail, usually through a plea deal.

Even more striking, bail seems to have a direct impact on the outcome of the misdemeanor trial. Only 38% of individuals in jail on bail had their case dismissed without a criminal record, although 88% of those out of jail on bail had a similar misdemeanor case dismissed without a criminal record. In fact, clients of the BCBF were three times more likely to have a favorable outcome in court compared to other individuals not out on bail. These numbers point to the ways that low income people are forced into outcomes and hard choices due to their inability to pay bail, and when the hurdle of bail is addressed, the outcome for low income people in court improves dramatically.

BCBF provides bail specifically for those who have been accused of misdemeanor crimes, with bails set at $2,000 or less. The BCBF pays an average bail of $1,100 for their clients. Misdemeanor crimes are defined in New York as crimes that carry a punishment of over two weeks and under one year. Some examples of misdemeanor crimes are disorderly conduct, vandalism, and public drunkenness. These lesser crimes and lower bail amounts may seem small to the middle-class eye; however, for low income people even a seemingly small bail amount can be a barrier to freedom. While bail is supposedly an incentive for the individual accused of the misdemeanor to return to court, the BCBF found that it was unnecessary; 95% of individuals whose bail had been paid by BCBF returned to court for trial over various months without a financial incentive.

BCBF found that not only was there a disparity amongst those who could and could not pay, but also one between those who could afford to miss days of their regularly scheduled lives and those who could not.  While some people may struggle to come up with the cash to pay bail right away, they could still afford to miss a few days of their work. However, many low income people reported that missing even a few days of their lives resulted in major disruption, specifically loss of job, children left unattended, hunger, or even homelessness.

These problems are part and parcel of the issues that BCBF seeks to address. The BCBF platform mentions how “even a short stint in jail can mean the loss of a job, eviction or deportation” and those who can figure out how to pay “may be forced to choose between paying bail and paying rent” or other impossible choices. Even minimal jail time due to financial hardship can have a negative impact on not only the individual accused of the misdemeanor, but often the entire family.

As a response to the various issues relating to bail, BCBF has provided bail for almost 5,000 people over the past five years. They have paid more than five million dollars in these efforts too. However, not only do they serve as a charitable bail foundation, paying the bails of the city’s most needy residents, they have also transitioned to advocacy and immigration work.

In November 2018, the BCBF started a new program, New York Immigrant Freedom Fund (NYIFF), to focus on paying immigration bonds to people who are unable to afford it. By partnering with local non-profit organizations, NYIFF is increasing the chance for people to win their immigration cases while living amongst their families, as opposed to living in confinement. In the New York area, thousands of people are in immigration detention centers while they face deportation. Because of harsh immigration laws, many are subject to mandatory detention and never have the chance to ask a judge for bond. Even for those who get the chance, bonds are often so expensive that immigrants either cannot afford to pay or are forced to turn to exploitative, for-profit bondsmen to get out of detention.

While BCBF was still paying bail for 1,200 people and subsequently spending over $1 million, the organization opened the new program, NYIFF, to pay bonds specifically for immigrants being detained by ICE. They quickly came to realize that they had to start an actual fund to support immigrants. “We raised $3 million in the first year of operations to pay immigration bonds for almost 350 community members,” said Kevin Cheng, the Development Manager at BCBF. “In our immigration system, people who are being arrested on civil charges and are being criminalized and detained in prisons, not just at the border but all over the country. Through the process of helping freed more than 450 people to date, we’ve seen firsthand how horrible the whole system in place is. This further emphasizes our call for large-scale systems change as the only possible solution.”

On January 1st 2020, New York became one of the first states to eliminate cash bail for misdemeanors. Under the bail reform law, passed in June 2019, judges may only set bail on violent crimes and a few specific misdemeanors. Andrew Cuomo, the New York governor, was in favor of the move, stating that “The blunt ugly reality is that too often, if you can make bail, you are set free, and if you are too poor to make bail, you are punished,” according to an article on Vox.  However, in January 2020 after the bill passed, there was some pushback against the law as a series of hate crimes saw individuals released without bail. In spite of this, the BCBF and NYIFF remain convinced that eliminating bail is a crucial step towards creating a more equitable justice system, and eventually a more equal society.

The Brooklyn Community Bail Fund (BCBF), and the newly founded program within the organization, the New York Immigrant Freedom Fund (NYIFF), have made large strides toward creating a more equal criminal justice system. Their work has helped thousands of people in New York, and they continue to fight for a more just system, even in these difficult times.

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