Defendants who can’t make bail, regardless of their crimes, are four times more likely to be sentenced to time in prison. So much for innocent until proven guilty. Maura Ewing reports on the Bronx Freedom Fund, the first licensed charitable organization of its kind to provide bail money to people who have little means to post it on their own.
The purpose of bail is to establish a kind of insurance that the accused, who is presumed innocent, will return for trial—sort of like how a bowling alley requires you to leave one shoe behind to ensure you won’t take off with theirs. Bail is set by a police commander at the station, or, much more commonly, by a judge (as in Diva’s case), a magistrate, or a bail commissioner—who all have considerable discretion.
“People with access to money can [post bail]. People who don’t have access to money can’t,” says Ann Jacobs, director of the Prisoner Reentry Institute at John Jay College of Criminal Justice in Manhattan. In Diva’s case, the Bronx Freedom Fund posted $1,000—not a large amount of bail compared to what’s set for felonies, but large enough that Diva couldn’t afford it. This is the problem that the Fund is working against: a system that keeps people in jail not because they are likely to flee from trial, but because they can’t afford bail. In other words, a system that punishes people for being poor. “So many judges are just in the habit of setting cash bail and assuming that people have the means to pay even a small amount,” Work says.
Without access to bail funds, those accused of minor crimes often plead guilty to get out of jail—and take the strike on their criminal record. “There is nothing as powerful as the desire to go home,” says Scott Hechinger, a public defender with the Brooklyn Defender Services. In 2013, his firm found that those of its clients who were held in jail without access to bail money pled guilty 92 percent of the time, versus just 40 percent for those who awaited trial at home.
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