Robin Steinberg: How Can We End The Injustice Of Bail?

Oct 12, 2018
Originally published on October 15, 2018 10:14 am

Part 1 of the TED Radio Hour episode Hacking The Law.

About Robin Steinberg's TED Talk

The bail system disproportionately impacts low-income people of color and pressures defendants into pleading guilty. But Robin Steinberg is implementing a plan to fix this--without waiting for reform.

About Robin Steinberg

Robin Steinberg is the CEO of The Bail Project, a new organization that fights mass incarceration, at scale, by using a revolving bail fund to help defendants post bail and alleviate the pressure to plead guilty.

She started her career as a public defender. In 1997, Steinberg founded the Bronx Defenders and worked for 20 years to create her own vision of public defense by extending legal representation and advocacy beyond criminal court.

The Bronx Defenders paved the way for two other initiatives including Still She Rises, a public defender office dedicated exclusively to the representation of women in the criminal justice system, and The Bronx Freedom Fund, a revolving bail fund that uses philanthropic dollars to post bail for defendants who cannot afford it.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

GUY RAZ, HOST:

It's the TED Radio Hour from NPR. I'm Guy Raz. I want to start at the beginning of your career in the 1980s. You - I guess you started out as a as a public defender, right?

ROBIN STEINBERG: I did. I became a public defender immediately upon graduating from law school.

RAZ: And what was - what was the idea behind it? You thought, OK, I'm going to be a public defender, and I'm going to help people who are defendants in criminal cases.

STEINBERG: That's right. And I, like lots of people, had no idea what was going on in our criminal legal system. In my third year in law school, I joined the criminal defense clinic at NYU and stepped into Manhattan Criminal Court and never was able to look away again.

RAZ: This is Robin Steinberg.

STEINBERG: What I saw so shocked me that I thought, this can't be happening in our country, and we can't possibly think this passes for justice. And I committed myself to then becoming a public defender, where I spent most of my career.

RAZ: There's a story that we tell ourselves about our justice system, that it's blind, that it's just. Everyone is treated equally under the law. But it's not true.

STEINBERG: Well, what you begin to realize very, very early on as a public defender is how we define crime, how policing occurs in this country. Who we're prosecuting in our state local courts is deeply, deeply defined by class and by race. And so I just wanted to fight for each and every one of my clients as hard as I could. But definitely you were pushing up against an enormous, expansive criminal legal system that was not just crushing my individual clients, but their families and their entire communities.

RAZ: Here's more from Robin Steinberg on the TED stage.

(SOUNDBITE OF TED TALK)

STEINBERG: Freedom, a concept so fundamental to the American psyche that it is enshrined in our Constitution. And yet, America is addicted to imprisonment. From slavery through mass incarceration, it always has been. We all know the shocking numbers. The United States incarcerates more people per capita than almost any nation on the planet.

But what you may not know is that on any given night in America, almost half a million people go to sleep in those concrete jail cells who have not been convicted of anything. These mothers and fathers and sons and daughters are there for one reason, and one reason only. They cannot afford to pay the price of their freedom. And that price is called bail.

RAZ: How much does it generally cost to post bail?

STEINBERG: So when somebody is arrested, judges can set bail in an amount in their own discretion. I have seen it as low as $100. For the people that we represent and the clients that we see, bail is typically under $5,000. But that is way beyond the reach of most families. Their families are making decisions about buying a gallon of milk for their children or putting that money towards bail. It's inconceivable to lots of Americans that you can't just go to an ATM machine and pull out $500. But that's the reality for most people coming through the criminal legal system.

RAZ: So if you are charged with crime and you're going to have a court hearing, it could be four or five months in the future. If you can't post bail, you're - you're stuck in a jail.

STEINBERG: That's correct. Once bail gets set, if you can't pay your bail, you're going to have to wait until one of two things happens. You're either going to plead guilty to go home - the other possibility is that you demand your hearing and your trial. And that wait can be anything from weeks to months to years, and that is not an exaggeration.

There are people waiting in local jails across this country who have been sitting there for years waiting to get their day in court, which we all believe in America is what you're just entitled to. But you're not, unless you wait for a very, very long time.

RAZ: We tend to have this vision of justice as blind and impartial and fair. But in practice, the law often fails those who need it most. So today on the show, we're going to explore ideas about hacking the law, how lawyers and activists are trying to change the legal system in some radical ways to make it more fair, more representative and more just.

(SOUNDBITE OF MUSIC)

RAZ: And Robin Steinberg, she wants to change the way bail works in the U.S. today because she says it creates a two-tiered system - one for the rich and one for everyone else.

(SOUNDBITE OF TED TALK)

STEINBERG: Let's talk for a moment about what it means to be in jail even for a few days. Well, it can mean losing your job, losing your home, jeopardizing your immigration status. It may even mean losing custody of your children. What's more, if you're held in jail on bail, you are four times more likely to get a jail sentence than if you had been free. And that jail sentence will be three times longer.

And if you are black or Latino and cash bail has been set, you are two times more likely to remain stuck in that jail cell than if you were white. Now, imagine for just one moment that it's you stuck in that jail cell, and you don't have the $500 to get out. And someone comes along and offers you a way out.

Just plead guilty, they say. You can go home, back to your job. Just plead guilty. You can kiss your kids goodnight tonight. So you do what anybody would do in that situation. You plead guilty whether you did it or not. But now you have a criminal record that's going to follow you for the rest of your life.

RAZ: So we've interviewed really - some really innovative thinkers about how to reform the criminal justice system. And you came upon a really simple way to kind of hack it, to kind of look at this and say, wait a minute. There could be a simpler way to start to tackle this. Can you tell me how you came to that idea?

STEINBERG: Sure. So my husband and I were actually sitting, having dinner one night many, many years ago. He's also a - was a public defender. And we were venting about watching one more client plead guilty so she could go home. And my husband said, you know, we should just start paying bail for our clients. We should start a bail fund and just start paying their bail.

And in that moment, the idea was born. We weren't sure whether we could do it. We weren't sure what the results would be. But we knew that we had something there, that if you could attack this problem at the front end, we might be able to actually begin to unpack some of the injustice.

RAZ: So you guys got to work. You started to raise money?

STEINBERG: We did. So we pitched the idea for a very long time and had a very hard time getting anybody to give us any donations for the bail fund. And then I met Jason Flom and his father, Joe Flom. And they had a family foundation. And they were courageous enough to be our very first donors. And they gave us a donation of $100,000 to start The Bronx Freedom Fund. And we began to pay people's bail with that fund.

And what we learned is the revolving nature of a bail fund is that a dollar that you use in a year can be used two or three times because at the end of a criminal case, the bail comes back into the fund. I would be bold enough to say that some of those dollars that the Flom family gave us way back when is probably still operating in the Bronx today.

RAZ: So when when somebody posts bail and they go to trial and their case is dismissed, that bail money is returned.

STEINBERG: So bail money gets returned regardless of the case outcome. The point of bail is to ensure that people come back to court.

RAZ: Oh.

STEINBERG: So if somebody comes back to court for each and every court appearance, at the end of the case - whether it was a guilty plea, whether it was a conviction or whether it was a complete acquittal or a dismissal - the bail money comes back. So it can revolve over and over again if you create a fund.

RAZ: So how does it work? I mean, you - you have teams of people who would go to a jail and say, don't plead guilty. We can help post bail for you. And is that kind of how it works?

STEINBERG: So the most important work gets done by our local people on the ground, who we call bail disrupters, many of whom have been formerly incarcerated or impacted by the criminal legal system themselves. They work on the ground to interview people in jails. And what we've learned from The Bronx Freedom Fund is that all you need to ensure that people come back to court is effective ways to notify them about their next court dates and to provide some support systems while they're out of jail and to connect them to services that might exist in the community. So when problems come up that might prevent them from coming back to court, we can help them solve that problem.

(SOUNDBITE OF TED TALK)

STEINBERG: Over the past 10 years, we have been paying bails for low-income residents of New York City. And what we have learned have exploded our ideas of why people come back to court and how the criminal legal system itself is operated. Turns out, money isn't what makes people come back to court. We know this because when The Bronx Freedom Fund pays bail, 96 percent of clients return for every court appearance.

It's powerful evidence that we don't need cash or ankle bracelets or unnecessary systems of surveillance and supervision. We simply need court reminders about when to come back to court. Next we learned that if you're held in jail on a misdemeanor, 90 percent of people will plead guilty. But when the fund pays bail, over half the cases are dismissed. And in the entire history of The Bronx Freedom Fund, fewer than 2 percent of our clients have ever received a jail sentence of any kind.

(APPLAUSE)

RAZ: It sounds like over the course of your career you've sort of come to the conclusion that the system needs massive reform. But that may be a decades-long struggle. And in the meantime, one way to attack it is by attacking bail, is by dealing with the bail issue.

STEINBERG: Yeah. The way I like to think about it is this, right? While we're thinking through ways for systemic reform to happen, while litigators are litigating cases, while policy reformers are doing their work, people sitting in jail cells today, they need a lifeline. We can't ask them to sit in those cold, concrete jail cells while we talk about systemic reform. It takes too long.

So when we think about revolving bail funds, when we think about the bail project to The Bronx Freedom Fund or the community bail funds that exist around this country, that is an immediate lifeline to those folks sitting in those jail cells as we hope to continue to ignite and move systemic reform forward.

RAZ: Yeah. I mean, when we think about, like, you know, examples of criminal justice or injustice in America, you know, like vigilante justice or the way people behaved in the wild West and we think, God, what an uncivilized time - like, we think we're just so much more evolved and civilized in the way that we deal with this now. But - but we're not.

STEINBERG: So we're kidding ourselves. And I know that that is very hard for all of us to grapple with because all of us are implicated in what has become our criminal legal system. You know, we seem to have, in this country, an insatiable appetite for incarceration. We seem to have, in this country, a very harsh mentality around punishment.

So we have used our criminal legal system to solve social problems that we used to look at as all of our responsibilities. And instead, we have pushed it away from our consciousness as if it didn't implicate all of us. But of course it does.

(SOUNDBITE OF MUSIC)

RAZ: That's Robin Steinberg. In November of 2017, she relaunched The Bronx Freedom Fund with a new name, The Bail Project. The goal is to expand to 40 cities nationwide. You can see Robin's entire talk at ted.com.

On the show today, ideas about hacking the law. I'm Guy Raz, and you're listening to the TED Radio Hour from NPR.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.