The first time Michael Milton helped buy somebody’s freedom, he didn’t expect it would be so simple.
He filed some paperwork, handed over cash and waited. Several hours later, the 19-year-old for whom Milton posted bail walked out of the St. Louis City Justice Center. The teenager had spent three months behind bars because he didn’t have $750 to make bail.
“He was in complete disbelief that this had happened,” Milton said. “That somebody random off the street came in with money and posted bond.”
The money came from The Bail Project, a national nonprofit that plans to bail out tens of thousands of people in dozens of cities within five years. Since the nonprofit launched in January, its St. Louis team has bailed out more than 750 people. This summer, it expanded into St. Louis County.
The project is founded on this premise: Setting cash bail strips people of the right to be treated as innocent until proven guilty. The group uses money from grants and donors to operate a large, revolving bail fund. Because bail money is returned at the conclusion of a case, the same dollars can be used to bail out multiple people a year.
Milton, who runs the project’s St. Louis office, said cash bail creates a two-tiered system of justice. People with money to bail themselves out can get back to their lives and fight their case from the outside, while those too poor to post bail can lose their jobs, housing and even custody of their children as they wait for their case to progress. People held pretrial are more likely to plead guilty and to receive longer sentences.
“Money should not buy us justice,” Milton said. “That’s what we believe to our core.”
Challenging the need for cash bail
In a small visiting booth inside St. Louis’ Medium Security Institution — also known as the Workhouse —Hattie Svoboda-Stel meets with dozens of people each week. On a recent morning, she sat across from a 24-year-old man jailed three days earlier on a misdemeanor assault charge. His first court date was more than a month away, and his bail was set at $1,000.
He called Svoboda-Stel at the suggestion of a correctional officer but didn’t know exactly how The Bail Project could help. Svoboda-Stel, who works as one of the nonprofit's “bail disruptors,” told him she could post his bail that afternoon.
“You don’t owe us any money,” she said. “The only thing we need you to do is to get to all your court dates. And we’ll help you get there. Basically, we try to become a team to help support you through this court case.”
With the help of volunteers and interns, The Bail Project connects people with health and social service groups and provides phone call reminders, bus passes, rides and child care assistance to make sure people can make it to all of their court dates.
In most cases, a judge sets cash bail – also called a bond – to create a financial incentive for people to return to court. The Bail Project’s data, Milton said, shows cash bail is not necessary – people show up to court even when their own money is not on the line.
“We have about 96 percent of our clients returning back to court,” he said. “That means people genuinely want to fight their case, and they’re not trying to skip bail. That proves people just need notification to get back to court, and they need resources and support.”
Local courts in Washington, D.C., moved away from cash bail in the early 1990s. Last year, the district’s courts released 94 percent of defendants without cash bail. Eighty-eight percent of them showed up for every court date. In New Orleans, a recent pilot program found that people released without cash bail made it to court at the same rate as other defendants.
Elected officials facing calls for criminal justice reform have started to look for ways to reform pretrial detention practices, which have fueled 95 percent of jail population growth in the past two decades. Like the criminal justice system as a whole, pretrial detention disproportionately affects black and Latino defendants.
Milton hopes his team’s work will add momentum to a local criminal justice reform movement that has grown in recent years as activists who started organizing in Ferguson, after the police-shooting death of Michael Brown in 2014, continue to demand accountability and build political power.
His goal, he said, is to try to reform the way stakeholders in the region’s criminal justice system view cash bail and pretrial detention.
“Judges can release people based on a promise to come back to court,” Milton said. “If our data show that people are willing to come back to court and fight their case, then that’s what we want.”
How bail is set
When a police officer stopped Lizzie Johnson over a traffic issue, she learned there was a warrant for her arrest. She faced a charge of forging a check and a $1,000 bond. Unable to afford it, Johnson spent weeks in the Workhouse.
Like others held at the jail, Johnson said she had to deal with roaches, mold and hours-long lockdowns.
“You kind of get depressed in there,” she said. “You start feeling like it’s the end of the world – like, I’m never getting out of here.”
It took weeks for Johnson to get a public defender and a bond reduction hearing. By the time a judge agreed to release her without bail, she had spent a month in jail and lost her job and her apartment.
“Going to that place and sitting there all because I didn’t have money to bail out really cost me everything I had out in the real world,” she said. “I came home to basically nothing.”
An analysis by the state public defender’s office in St. Louis found that 1 in 10 clients could immediately pay their way out of jail. Seventy percent of clients needed $1,000 or more in cash to post bond. The study looked at cases picked up over two and a half weeks in March 2017.
The office now works closely with The Bail Project, which typically posts bonds that are $5,000 or less.
When judges set release conditions for misdemeanor and felony charges in St. Louis, they have to consider several factors outlined in Rule 33.01 of Missouri’s rules of criminal procedure. Those factors include the circumstances of a charge, a defendant’s criminal history and numerous personal details, such as family ties and financial resources.
But when judges set those conditions, the information they have about a person is limited. For example, a judge might know whether or not someone is employed but not how much money they make.
“When we’re making our first initial bond setting, we’re doing the best we can with the information that we’re given at the time,” explained Judge Michael Mullen, who presides over the 22nd Circuit Court.
Rule 33.01 instructs judges to release people with a written promise to appear in court – unless the judges think the signed promise won’t ensure an appearance. It also gives judges discretion to set other types of bail, such as requirements to report to the court regularly.
But judges don’t receive much training on how to determine whether someone is likely to return to court, according to Beth Huebner, a University of Missouri-St. Louis criminal justice professor.
Huebner, who is working with St. Louis County to reduce its jail population, pointed out that studies show free bus passes and text message reminders can significantly increase court appearance rates.
“I think it’s about educating judges about risk and understanding what factors predict risk,” she said. “Oftentimes, judges think things that are needs – like substance abuse and education – are indicators of risk. And they’re not. They’re a need. So they should be considered differently from risk.”
Avenues for reform
Although judges ultimately decide whether to set cash bail, criminal justice reform advocates also point to the powerful role that prosecutors play in the process.
In addition to recommending initial bond amounts, the St. Louis circuit attorney’s office regularly opposes efforts by defense attorneys to have bonds reduced. Critics say it’s a policy that the office could easily change.
“The default position should be: Judge, this person is not a direct threat to anyone, this person has not been identified as a flight risk. So we’re recommending that they be released,” said Blake Strode, who leads the nonprofit law firm ArchCity Defenders. “That very rarely happens. That’s something that the circuit attorney’s office could do today.”
Circuit Attorney Kim Gardner said her office is working with the Vera Institute of Justice, a national criminal justice reform nonprofit, to develop tools and procedures to have a more “active voice” in both the bond recommendation and bond reduction process.
“We need to be proactive in this – in making a recommendation that identifies the issues that bail reform takes into account,” she said.
Gardner said her office is looking to develop a risk assessment tool to help prosecutors predict the likelihood someone will commit an offense.
“We want to make sure we have that infrastructure so we can be a part of that conversation of bail bond reform,” Gardner said. “But I think it’s a more complex situation than just eliminate cash bond.”
A growing number of cities are using risk assessment tools, which are designed to predict the statistical likelihood someone will skip a court date or commit a crime. But some bail reform proponents warn that risk assessment algorithms reflect the racial disparities in the system and will not do enough to end pretrial detention.
“We have to start with a genuine presumption of release and have pretrial detention be the exception, not the rule,” Strode said. “As opposed to overly punitive measures that hold people in cages without any determination of guilt.”
Follow Carolina Hidalgo on Twitter: @carolinahidalgo