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The Bail Project's Robin Steinberg On Bail Reform

By RJ Vogt | November 25, 2018, 8:02 PM EST

Robin Steinberg, founder of The Bronx Freedom Fund and The Bail Project, aims to help bail out 160,000 people in the next five years. (Photo: The Bail Project)

Having served as a public defender for 35 years, Robin Steinberg knows a thing or two about the effect cash bail can have on criminal defendants.

After seeing scores of low-income people sent to jail solely because they could not afford to pay bail, Steinberg decided that she could have the most impact attacking mass incarceration at the front end of the system: the moment bail is set.

That decision led her to cofound the Bronx Freedom Fund with her husband, fellow defender David Feige, in 2007. The first charitable bail organization in the state of New York operates on a simple premise: using donated funds to post bail for indigent defendants. Once those defendants appear for their court dates, the bail is returned and the same funds can be used again, to post bail for additional defendants.

In its first year, 98 percent of the Bronx Freedom Fund's clients made all required court appearances, and 79 percent of their cases ended in a dismissal or a noncriminal disposition. Success on a local scale convinced Steinberg to take the revolving bail fund model national, and in 2017, she launched the Bail Project, which aims to post bail for 160,000 people across 40 high-need jurisdictions within the next five years.

Here, Law360 talks with Steinberg about how she launched the country's first national revolving bail fund, and what the bail reform movement needs going forward.

How did you come up with the revolving bail fund model?

We didn't really know if you used philanthropic dollars to bail somebody out, would people come back to court or not? The myth was that people won't come back unless they have skin in the game, unless they have their own money at stake.

And it turned out that the money is not what makes people come back to court. People come back to court, according to our data, over 95 percent of the time, so long as they have effective notification systems about next court dates, and they have support when they have an obstacle that might get in the way and prevent them from coming back to court.

Obstacles could be something like, "I don't have enough money for my transportation costs," or "I don't have child care for that morning." And if you are able to help support people and connect them to the services or resources they need, they will come back to court whether or not they have any money up.

Why wasn't there a national bail reform project like this already?

When we first set up the Bronx Freedom Fund, people thought we were a little bit crazy to try such a thing. We started the Bronx Freedom Fund at a moment when criminal justice reform was not as much in the mainstream narrative as it is today.

There have been community activists doing targeted bailouts, either for particular people or individuals or around a cause, for as long as jail cells have existed. It could be the ACLU bailing out people that were being targeted by the government in the McCarthy era. It could be targeted bailouts for civil rights protesters in the '60s that other organizations were doing. But the revolving bail fund model, that is unique to the work we did in the Bronx.

How do donors respond when you talk about using their money to bail people out of jail?

We're learning that once philanthropists and funders actually learn about the realities of a wealth-based system, people are offended by it. And people are offended by it from many different perspectives on both sides of the aisle. I don't think anybody thinks that a criminal legal system should operate based on how much money somebody has in a bank account. But that's precisely what the system is that we have now.

Many, many philanthropists and donors have come on board, not just for us but for other bail reform movements in this country to basically say, "You know, what? Money shouldn't determine the kind of justice you get and it's just wrong."

I think the other thing that appeals to them is the immediate impact: You can use philanthropic dollars to have an immediate impact on a person's life and on a family's life and on a community, and that money then will return into the fund and it can be used over and over again to pay bail for more people in the future.

How many times can one dollar be reused?

What we know from our experience for over a decade in the Bronx is that a dollar in the Bronx can be used two or three times a year. It rotates at about that rate. So you can imagine what a massive force multiplier that $1 becomes: it can be used forever.

But it is really important to say that we really don't want a revolving bail fund to exist forever. What we really want is to have the revolving bail funds that we are creating across the country to provide a lifeline to people who are stuck in jail cells because they can't pay the money — while bail reform moves forward.

Hopefully we end unaffordable cash bail forever. And we end wealth-based detention forever, and nobody would be happier than we would here at the Bail Project to put ourselves out of business. But until that happens, until unaffordable cash bail no longer exists, and freedom is a reality, then a revolving bail funds model is an immediate lifeline for people suffering in those jail cells.

What would real bail reform look like?

Real bail reform needs to be consistent with the fundamental principle of our entire legal system, which is presumption of innocence. That's not a legal technicality. That should cloak all of us, regardless of race or class or where we live or religion or any other factor. When government is trying to take somebody's liberty and freedom away from their families, there needs to be a real process in place. And that process really needs to be consistent with a presumption of innocence.

The only circumstances under which that presumption can be defeated ought to be in a system where the government must try to rebut that presumption by having an adversarial hearing where the accused is afforded counsel, the right to call witnesses, and the right to cross examine the witnesses against them. The burden of proof should remain on the government to prove that this person is actually not going to come back to court, or is a risk to a specific person. In any real bail reform, that's what you need to see in place.

What’s wrong with using algorithms to assess whether someone is a flight risk?

I think people are looking for a quick fix, right? They understand that holding people in jail because they don't have enough money to pay is wrong, so people are just looking for a quick answer. And we need to slow down and we need to really think about what comes next. But slowing down while we leave people in jail cells is unacceptable, which is why we have to have an intermediate step. That's where I see bailouts and bail funds and bail actions really playing an important role here, which is as the lifeline for people in the jail cells.

People like to talk about risks through a lens of the worst-case scenario. Somebody gets out of jail and commits a terrible crime. What people aren't talking about nearly enough is the proven risk — proven by all the data — that when somebody is held in a jail cell, who hasn't been convicted of a crime, the damage to them and their family and their communities is unquestionable and unavoidable. That is a risk also, right? We only talk about risk in the extremes, but we're not talking about the risk that we know is real.

--Editing by Brian Baresch.

All Access is a series of discussions with leaders in the access to justice field. Questions and answers have been edited for length and clarity.