Why They Kneel: 'What's Free?' The Money Bail Revolution in Philadelphia and D.C.

Illustration for article titled Why They Kneel: 'What's Free?' The Money Bail Revolution in Philadelphia and D.C.

To examine the injustice and inequality that prompted some NFL players to protest during the national anthem, each week, for the remainder of the NFL season, The Root will explore the data behind racial disparities in the two cities represented in the National Football League’s premiere matchup—Monday Night Football.


Tonight, the football team from Washington, D.C., will face the Philadelphia Eagles.

Iyo Bishop was arrested during a domestic violence incident with her then-boyfriend, but her family couldn’t come up with the $5,000 needed to bail her out, so she sat in jail for 78 days. According to NBC10, it was not until volunteers from the Philadelphia Community Bail Fund posted her bond on Mother’s Day that Bishop was released. After spending two and a half months in jail, Bishop lost her home, her job and her car.

Her case was eventually dismissed.

Last week, Philadelphia Eagles defensive back Malcolm Jenkins did the same thing for nine people in Philadelphia jails, posting bail so they could spend Thanksgiving with their families. Jenkins used $25,000 donated from NFL players, which was matched by the Eagles Social Justice Fund, according to the Philadelphia Inquirer.

The money is part of the funds negotiated by the Players’ Coalition, a group of players led by Jenkins who persuaded NFL teams to create funds for social justice causes. Although there are some players who say Jenkins and the Players’ Coalition sold out Colin Kaepernick for a reported $100 million, it is impossible to ignore the fact that the agreement was a direct result of Colin Kaepernick’s decision to kneel during the national anthem. And because of that, at least nine people spent Thanksgiving with their families.

This is why they kneel.


Among the most important rights afforded by law is the right to due process of the law. According to the Constitution, no citizen can be deprived of his or her freedom without a trial or due process. But there is always a workaround. And as with everything...

The answer to all your questions is money.

One of the least-discussed subjects surrounding the criminal justice system is the use of money bail. In most states, when a person is arrested for a crime, a judge issues a bail or a bond—an amount that the court requires from the accused to pay in exchange for his freedom.


While some places have specific dollar amounts set for various crimes, in many places, bail amounts are left up to the discretion of a judge or magistrate. The purpose of bail is to ensure that the accused will appear at a later trial, according to the American Bar Association and is not supposed to be used as a fine or punishment.

However, in local and county jails across America, there are people who have spent weeks, months and even years in jail simply after being arrested for a crime. Many of them are accused of misdemeanors. Some of them languish behind bars for offenses like trespassing or failing to appear in court for traffic tickets. A large number of them are innocent.


Yet, there are hundreds of thousands of people locked up in every county in this country simply because they could not afford the cash bond. According to a 2017 report by the ACLU and Color of Change (pdf), 70 percent of people in local jails have not been found guilty of a crime. This disproportionately affects black and poor people.

A 2016 paper by Maryland’s Office of the Public Defender (pdf) showed that people who live in poor neighborhoods paid a disproportionate amount of the $256 billion Marylanders spent on nonrefundable corporate bail bond premiums from 2011 to 2015.


“The money bail system has a disproportionate impact on racial minorities,” the report notes. “[O]ver five years, black defendants were charged premiums of at least $181 million, while defendants of all other races combined were charged $75 million.

A recent study by Princeton researchers., Racial Bias in Bail Decisions, examined bail amounts set by Philadelphia judges for defendants for “failing to appear”—essentially people who missed court dates. The study found that white defendants are released on bail at higher rates than black defendants and receive lower bail even though white defendants were 22 percent more likely to commit a crime while they were released. The scientists found significant bias in every part of the bail process, regardless of the race or experience of the judge or even the severity of the defendants’ alleged crime.


But luckily, someone came up with an answer. In fact, the two cities represented in tonight’s NFL matchup represent two different approaches to solving the money bail situation.


Washington, D.C., is proof that cash bail is not a solution

Since 1991, instead of cash bail, the District of Columbia has used an algorithm that determines the risk of whether a person will show up in court. The cashless bail system releases more than 90 percent of people who are arrested for a crime. And guess what happened?



Crime didn’t rise. There weren’t riots on the street. While many have criticized the District’s algorithm as having racial bias baked in, the Washington Post notes that:

“In the past five years, about 90 percent of defendants released were not arrested again before their cases were resolved, according to data collected by the D.C. Pretrial Services Agency. Of the roughly 10 percent who did get in trouble again, the vast majority are not rearrested for violent crimes.”


Washington D.C. can take such measures because it is a city that is not controlled by a larger, more conservative, state legislature. But Philadelphia reformed its money bail system in an incredibly easy way:

The city just did it.

In February, the Philadelphia City Council passed a unanimous resolution calling on the city’s district attorney and Pennsylvania officials to end the practice of using money bail as a means of pretrial detainment. Even though the resolution had no legal weight, it highlighted the need for pretrial reform. But there is another reason the resolution didn’t mean anything to Philadelphia’s District Attorney Larry Krasner.


He was going to do it anyway.

Even before he took office, Krasner announced, during his campaign, that he would no longer require money bail for low-level offenses if he was elected. He didn’t ask. He just started doing it.


After he was elected, not only did the progressive criminal-justice reform-minded Krasner stop pursuing nonviolent drug possession offenses, he refused to prosecute cases involving stop-and-frisk searches and ended the city’s cash bail system for 25 low-level crimes.


Yes, apparently you can just do that.

Although it is too early to determine the effect on the crime rate, criminal justice reforms like Krasner’s has already manifested themselves in one area: The city’s jail population continues to plummet. Even more interestingly, the two cities have saved money.


In Philadelphia, for instance, Citylab reported that Comptroller Alan Butkovitz estimated that the city could save $75 million by eliminating cash bail. Overall, more than a third of the people in Philly jails in 2016 were there just because they couldn’t afford bail. The high jail numbers end up costing taxpayers and benefitting no one, even if the bail amounts are high.

That’s because unlike fines, court costs and legal reparations, bail money doesn’t go to cities, states or counties. If the defendant posts a bond and shows up to court later, it is returned to the accused. If the defendant pays a surety bond (usually 10 percent of the stated bail amount), that money goes right into the pockets of corporations, mostly large insurance companies.


Private bond and bail companies make between $1.4 billion and $2.4 billion a year in profits. The industry has grown so strong that it regularly makes six-figure donations to congressmen who allow them to write bail laws while fending off any calls for the end of cash bail.

No matter how one feels about the NFL protests, it is a proven fact that the cash bail system discriminates against poor and nonwhite people. In many cases, people are forced to pay odd high-interest loans, sell their cars or work multiple jobs to repay the debt for crimes for which they are technically presumed innocent of. Even if they are found not guilty or the case is dismissed, money bail can send some people into an endless spiral of debt and turmoil in an attempt to purchase their freedom.


There are cases like Demmorea Tarver, who has been making payments on his bond for a decade, even though his case was tossed out after the police officer was accused of widespread misconduct. The tales include travesties such as Cedric Smith, who sat in jail for 41 days until he was tried and found not guilty. Smith lost his job and now depends on food stamps to live.

In the wake of Kaepernick’s protests, angry objectors who felt like he dishonored some ethereal notion of liberty and justice, often reminded Colin that “freedom isn’t free.”


As if we didn’t know.

This is why they kneel

World-renowned wypipologist. Getter and doer of "it." Never reneged, never will. Last real negus alive.


Maryland was an interesting example to reference too since they had an additional way of addressing money bail—modifying court rules and getting the AG on board. The difficult part is figuring out how to get it done in states with vastly different rules (along with the bail bonds lobby). But yeah, the DC pretrial system is pretty much doing what it’s supposed to. It’s such a well-oiled machine at this point from my experience working with that office.