Beyond Money Bail

Looking Back to Move Ahead
Benjamin Weber Former Mellon/ACLS Postdoctoral Fellow & Senior Program Associate
Jun 27, 2018

A sign for Free Me Bail Bonds Connection in New Orleans. Photo: William Widmer for The New York Times. | See, When Bail Feels Less Like Freedom, More Like Extortion.

As momentum to end the use of money bail continues to mount across the country our co-authored report, From Bondage to Bail Bonds: Putting a Price on Freedom in New Orleans, asks what we can learn from the past to inform alternatives to money bail now and in the future.

The foundational right to pretrial liberty hasn’t changed. We know that people deserve to be presumed innocent until they are proven guilty. Yet, because of the money bail system, it has become a right reserved only for those who can afford to purchase their freedom. As our report shows, however, bail did not always mean a set amount of money. In most circumstances, it was simply a pledge to return to court.

In New Orleans–and across the country–the institution of slavery cast a long shadow over the development of money bail. Slavery created entire financial markets based on fear arising from racist fictions about black people as inherently dangerous and criminal. The private industry of man-hunting, for instance, grew because there was money to be made from capturing and jailing black people who were alleged to be fugitives, called dangerous, or appeared out of place. The city’s archival records show that profits flowed to government and private actors when enslaved people were booked and released, hired out, or caged for “safe-keeping.”

Just as the impact of slavery on money bail extended across state lines far beyond the South, myths about black criminality carried forward in time. During the Convict Leasing and Jim Crow eras, the “condemnation of blackness” not only appeared in racial stereotypes, overt anti-black laws, and racial terror lynchings, but was embedded in the very fabric of social scientific discourse, in things like crime statistics. As former slaveholders sought to use the prison system to extract compensation for the loss of wealth in the form of enslaved humanity, city and town officials used jail detention to drain financial resources, curb black political power, and structure racial hierarchy across urban America. The modern day money bail system continues to reap millions of dollars in New Orleans, and billions of dollars nationally, from a market based largely in racial fictions of danger.

As our report shows, 85 percent of those arrested in New Orleans are unable to afford a lawyer. Still, fully 84 percent of the $6.3 million paid in money bail in New Orleans in 2015 was paid by low income people of color. The human and financial costs of the current system destabilize communities, trap people in crippling cycles of debt, and make everyone less safe.

For the more than 500 people who are locked in the New Orleans jail on any given day merely due to their inability to pay bail, it is a matter of life and death. As the recent death of Dennis Edwards in New Orleans and the renewed outcry over the deaths of Kalief Browder in New York and Sandra Bland in Texas reminds us, they should never have had to endure those horrible conditions in the first place.

In “From Bondage to Bail Bonds,” co-published by the Data Center, we urge New Orleans to become a leader in the movement to end money bail. The city’s 300th anniversary offers the opportunity to reckon with its legacy of racial oppression and inequality, and commit to a better future. With the opening of the Equal Justice Initiative’s National Memorial for Peace and Justice in Montgomery and the upcoming chance for voters to strike down Louisiana’s non-unanimous jury law, it is clear that momentum is also mounting around historical truth-telling as a path toward collective healing.

So what would reckoning with the history of money bail do? It would urge us not only to avoid making mistakes of the past, but to summon the courage to undo them.

Check out the Data Center’s complete New Orleans Prosperity Index: Tricentennial Collection and read more on our report on the history of money bail.