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How bail laws fail poor Americans and what faith groups are doing to help

Across the country, religious leaders are joining with civil rights organizations and policymakers to reform bail policies.

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SALT LAKE CITY — On the Sunday the Rev. Winnie Varghese preached on bail reform, she had a backup plan.

She'd written a second sermon on the same set of Bible readings, a safety net in case she chickened out. But then she walked to the front of the sanctuary and saw two people in the front row who'd spent most of their lives in jail.

"I couldn't have had a clearer message that I needed to do it," she said.

The Rev. Varghese, senior priest for justice and reconciliation at Trinity Church Wall Street in New York City, began her sermon on Oct. 14, 2018, by talking about how to know what's right. She explored the Bible's calls to stand with the most vulnerable. Then she talked about poor people who are stuck in jail because they can't afford to pay bail.

"Everyone knows it's happening, but no one's doing anything about it," she said.

That's beginning to change, in part because of faith leaders like the Rev. Varghese.

Laws that ensure people accused of nonviolent crimes can afford bail or aren't required to pay it at all recently passed in New Mexico, California, New Jersey and New York, and they've been considered by other states. Last year, Utah implemented a new tool to help judges set fair bail amounts.

This Oct. 23, 2014 file photo a sign is seen outside a bail bondsman across the street from Mercer County criminal courthouse in Trenton, N.J. (AP Photo/Mel Evans,File)

This Oct. 23, 2014 file photo a sign is seen outside a bail bondsman across the street from Mercer County criminal courthouse in Trenton, N.J. (AP Photo/Mel Evans,File)

Mel Evans, Associated Press

"There's been a rethinking of the old model" after high-profile deaths in police custody and public debate about racial disparities, said Kellen Funk, a legal historian at Columbia University who researches the history of the bail system.

More work is needed, and that's where religious groups increasingly step in. Houses of worship and faith-based nonprofits across the country are working to clear up misconceptions about bail and build a better system.

"Bail is supposed to create freedom for people until their court date, but it's become a way to harass people and harm them," the Rev. Varghese said.

Are bail policies fair?

Bail is one of the world's oldest legal institutions, but the way it's used in the United States today has little in common with how it began, according to Funk.

In the Middle Ages, bail was created to guarantee at least partial payment of the fines that would later be handed down as punishment. Over time, it became a way to ensure court appearances. Someone other than the defendant had to promise to pay the bail amount if the defendant ran away, Funk said.

In the modern U.S. legal system, bail is still aimed at guaranteeing court attendance. But since it has to be paid or guaranteed before an accused person is released, it can prevent poor people who have not yet been convicted from continuing on with their daily lives.

They may miss work or rent payments, the Rev. Varghese said. There may be no one to watch their kids.

"It can destroy someone’s life," she said.

It's tempting to argue that those who are affected deserve it. If they're truly innocent, why'd they get arrested?

A sign is seen outside a bail bondsman across the street from Mercer County criminal courthouse Thursday, Oct. 23, 2014, in Trenton, N.J. (AP Photo/Mel Evans)

A sign is seen outside a bail bondsman across the street from Mercer County criminal courthouse Thursday, Oct. 23, 2014, in Trenton, N.J. (AP Photo/Mel Evans)

Mel Evans, Associated Press

Such thinking may be common, but it's not constitutional, argues Kris Steele, executive director of Oklahomans for Criminal Justice Reform. The Eighth Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

"We're trying to address and eliminate this practice of a debtor's prison," he said.

In so doing, they might actually spur the creation of a more efficient justice system. Recent research has shown that bail doesn't actually increase the likelihood that someone shows up in court.

Still, change isn't easy. Few elected officials feel comfortable taking on criminal justice reform, and the bail bonds industry relies on current policies to stay in business.

People turn to bail bondsmen for help when they don't have enough cash on hand to pay the full bail amount on their own. After collecting a fee in cash and ensuring the defendant has enough collateral to cover the bail if they don't show up in court, the bondsman will notify the court that it's guaranteeing the payment.

"The entities that are dedicated to protecting the status quo are very influential," said Steele, a Republican who served in the Oklahoma House of Representatives from 2001 to 2013.

But recent policy shifts across the country show that progress is possible, bail reform advocates said. The key to further change is getting more people to care.

"A lot of folks are intentional about getting a message of fear out there. It's really not helpful. We want to clarify the myth that bail keeps people safe," said Brittany White, manager of Faith in Texas' "Live Free Texas" campaign.

What are faith groups doing to help?

Trinity Church Wall Street's bail reform efforts began a few years ago, when leaders decided to do more work around racial justice and reconciliation. Bail policies felt like the right place to start, the Rev. Varghese said.

"There was a huge learning curve, but, as we began to do the work, we discovered people in our congregation, on our staff and in our neighborhood who had been horribly impacted" by bail, she said.

The church, in partnership with Central Synagogue in New York City, began hosting events on the topic, which brought together faith leaders and lawmakers. Education is a key piece of the advocacy work, the Rev. Varghese said, noting that few people in power realize what it's like to not have enough money to bail out a loved one or yourself.

"I'm one of those people who didn't have to think about it. No one in my family or among my friends is trapped in this way," she said.

Even if you've bailed out someone before, you're unlikely to understand the ins and outs of the justice system, White said. You may not realize how subjective bail amounts can be or how many days can pass before accused people are able to meet with a lawyer.

Those who have been impacted by the justice system must be involved in the solution. – Brittany White, manager of Faith in Texas’ “Live Free Texas” campaign

"We're helping directly impacted people to tell their stories," she said.

Like Trinity, Faith in Texas has organized community conversations about bail reform. White, who was previously incarcerated for marijuana trafficking, and others describe losing their jobs and apartments while awaiting trial and ask policymakers to consider alternative policies.

"Those who have been impacted by the justice system must be involved in the solution," she said.

Faith in Texas is also part of a lawsuit against Dallas County, which challenges policies including efforts to keep bail hearings closed to the public.

"The plaintiffs, represented by attorneys from the American Civil Liberties Union of Texas and Civil Rights Corps, a Washington, D.C.-based nonprofit, allege that Dallas County is jailing some of its poorest people without any meaningful inquiry into their ability to pay," The Marshall Project reported last year.

Bail Bonds sign on top of building. Danielle Kingston, the owner of A+ Idaho Bail Bonds in Rexburg, Idaho, said Lori Vallow’s $1 million bond is a “big bond for our area,” which must be considered when deciding whether or not work with Vallow’s team.

Bail Bonds sign on top of building.


Trinity's work also extends beyond community events. The church participated in a mass bailout last fall in New York City, which inspired the Rev. Varghese's sermon.

Such activism may seem new or surprising, but churches have long helped bail people out, Funk said.

"There's a whole shadow bail system that operates through churches and faith communities," he said.

Religious leaders and faith-based organizations are well equipped to talk about why society should never celebrate keeping people trapped in jail, Steele said.

"It was a natural fit when we started talking about redeeming and reclaiming the lives of Oklahomans to turn to the faith community for help underscoring the importance of not giving up on one another," he said.

What’s next for bail reform?

The Rev. Varghese agrees that bail-related advocacy work is a natural fit for faith groups.

"I think it's the job of faith communities to talk about and hold up as well as we can those who are the most vulnerable," she said.

However, she was still nervous about her sermon last October. She worried about her community's reaction to bailing people out.

"This issue has been so politicized," she said. "People act like anyone arrested is, by default, a criminal."

Slowly but surely, that's changing. Bail reform is becoming a bipartisan, interfaith cause, as Americans of all stripes learn about the costs of imprisonment, including the deaths by suicide of some people who were held for days on minimal charges, Funk said.

"There are reasons across the political spectrum to think something is wrong with our bail system as it is currently constituted," he said.

However, it's not just bail bondsmen who defend current policies. In a sense, maintaining the status quo is also a bipartisan cause, since local Republican and Democratic judges and lawmakers often worry about how reducing or eliminating bail will affect their careers, Funk said.

If a defendant who was released without bail unexpectedly commits another crime, "it's always going to make the papers," he said. Someone who can't pay bail, on the other hand, "is not going to make waves, even many thousands of someones."

There are reasons across the political spectrum to think something is wrong with our bail system as it is currently constituted. – Kellen Funk, a legal historian at Columbia University

But it should make waves, Steele said. While serving in the state legislature, he studied Oklahoma's budget and determined that keeping people behind bars who could be free was a waste of the state's financial resources and human capital.

"I became convicted that we are giving up on individuals too soon," he said.

This year, Oklahomans for Criminal Justice Reform, with the support of faith leaders and other community groups, advocated for legislation that would eliminate cash bail for misdemeanor and nonviolent felony charges and require judges to set bail at an amount that defendants can afford to pay. The bill came a few votes short of making it to the governor's desk, Steele said.

The organization plans to either pursue the bill again next year or petition to turn bail reform into a ballot initiative, he added.

Elsewhere, similar bills have passed. In New York, "most people charged with misdemeanor and nonviolent felonies will be automatically released" beginning in January 2020, according to Syracuse.com.

Although Trinity celebrated the victory in New York, they're far from done with their bail-related efforts, the Rev. Varghese said. Eliminating bail does not ensure equal treatment for vulnerable prisoners. It doesn't ensure unfairly imprisoned men and women will be able to tell their stories.

"We're working with our legislators and with civil rights advocates to guarantee the liberty of the most people possible," she said.