How The Bail Project is reforming criminal justice in the US

Nearly half a million people in the US are in jail right now without being convicted of a crime, simply because they can't come up with the money to pay cash bail. To try and fix this system, public defender and activist Robin Steinberg asked a straightforward question: What if we paid bail for them? In conversation with TED Radio Hour host Manoush Zomorodi, Steinberg shares how her nonprofit The Bail Project -- which uses a revolving fund to post bail for those who can't afford it -- is scaling up their efforts across the country and rolling out a new community-based model to fight mass incarceration. (This ambitious plan is part of the Audacious Project, TED's initiative to inspire and fund global change.)

Manoush Zomorodi: So, Robin Steinberg,

thank you so much
for being my first official guest

as the new host of TED Radio Hour.

I'm pretty psyched about that.

Robin Steinberg: I'm delighted.

(Applause)

MZ: So OK, I want to start
with the Bail Project,

how it came to be,
how you came up with the idea.

The story goes

that 10 years ago, you and your husband
were eating Chinese takeout food

when you came up with the concept.

You'd been a public defender
for over 30 years,

but there was this moment
where you decided something had to change.

RS: So we had both spent decades

in the trenches of the criminal
legal system as public defenders,

fighting for each and every client
the best we could,

defending people's humanity
and their dignity

and fighting for their freedom.

And no matter how good we were as lawyers,

and I like to think we were really good,

and how forceful we fought
on behalf of a client,

sometimes it all came down
to a few hundred dollars.

And that was whether or not
your client could pay bail

and fight her case from freedom

or whether she was going to be
locked in jail on Rikers Island

and desperate would wind up
pleading guilty,

whether she did it or not.

And that just enraged us.

And sometimes, you know,

the answers are simple
and they're right in front of you.

And so we thought,

"Well, what if we just paid
clients' bail?"

And that's where the idea
of creating a revolving bail fund --

because bail comes back
at the end of a case,

if we could raise money
and put it in a fund,

and have a revolving fund,

we could just pay bail for our clients.

Now I have to say, that was back in 2005.

People weren’t talking
about criminal justice reform

the way they are now,

there wasn't a lot of conversation
about bail reform,

and quite honestly, we spent two years
knocking on people's door.

Nobody answered.

Until one day, one man and his family,
Jason Flom and his family,

decided to take a chance on us
and gave us a grant in 2007.

And we began to test
the revolving bail fund model.

And to see what would happen.

MZ: Can you clarify, though,

like, why it is so important
for someone not to be in jail

while they await trial?

You've explained this in the past
and it really blew my mind,

because I had no idea what could happen
in those days or weeks

before someone actually
has to plead their case.

RS: Sure. So, being held in jail
even for a few days

can change the trajectory of your life.

It is not only the place
where you can be victimized, sexually,

you can be exposed to violence,

you'll be traumatized in all sorts of ways
while you're in the jail,

and that's even
the first few days or a week

is when most jail deaths actually,
whether they're suicides or homicides,

actually happen.

But while you're sitting in jail,

and understand,
folks sitting in jail pretrial

have not been convicted of a crime.

They're there because they don't have
enough money to pay bail.

And while that's happening,
people's lives are falling apart outside.

You're losing your job,

you might be losing your home,

your children might be taken from you,

your immigration status
might be jeopardized,

you might get thrown out of school.

So it's the damage to you
that's happening in our local jails,

but it's also what's happening
to you and your family

and your community
that you've been removed from

while you're waiting for your trial,

which, by the way, can take days, weeks
and no exaggeration, can take years.

MZ: So you explained this sort of
crazy limbo that people are in

from the TED stage in 2018,

and I want to just play a quick clip
from that talk that you gave,

which was incredibly moving.

Can we play that?

(Audio: Robin Steinberg TED2018)
It's time to do something big.

It's time to do something bold.

It's time to do something ...
maybe audacious?

(Laughter)

We want to take our proven
revolving bail-fund model

that we built in the Bronx

and spread it across America,

attacking the front-end
of the legal system

before incarceration begins.

(Applause)

MZ: The energy in the room
when you gave your talk was palpable,

and it ended up getting you
quite a bit of funding

from the Audacious Project,

which is TED's initiative to get
some of these big ideas support

to make them actually happen.

Can you explain what has happened
since you gave your talk?

RS: Sure.

So, the Audacious grant allowed us

to take our proven concept
and to scale it.

And the idea is that we are scaling
this model across the country.

We're currently in 18 different sites.

And we are doing two things, right?

The Bail Project is designed both,

provide an immediate lifeline
for folks that are stuck in jail cells

simply because of poverty,

because they can't pay their bail,

and that's a response
to the immediate direct emergency

and human rights crisis
that we have in this country

around pretrial incarceration.

But the second thing we're trying to do
is we're testing a model

that we call community release
with voluntary supports.

And what we're trying to prove is,

A: you don't need cash bail,

people will come back to court
without cash bail.

That myth has already been debunked
and we know that.

But we're also trying to model

you can actually release people
back to their communities

with effective court notifications.

Make sure they're connected
to services they might need.

And people will come back to court
while their cases are open,

and until those cases close.

It is in an effort to move policy forward,

to ensure the systemic change happens,

but here's our fear:

it's a race against time.

Because as this conversation
picks up speed,

and as bail reform begins to take hold,

some systems will move to new systems

that we fear will recreate
some of the same harms, right,

that the initial bail system [created].

Those are racial disparities,

economic inequality,

and we can actually recreate that
if we don't get this right.

And so we're in a race against time

to prove that you can do
a community-based model

that doesn't require electronic monitoring

or risk algorithms
or jail cells or cash bail,

but that you can simply release people
to communities with supports.

And that will work.

MZ: I want to come back to that
in a minute, but before we do that,

my background is as a tech journalist,

and when you talk about
scaling a program like this,

I can only assume that you are facing
completely different challenges

than, say, a founder of an app
or a platform or something like that.

What are the challenges?

I mean, you're going to states
with different laws,

each city must be so completely different.

How do you do it?

RS: So you know, scaling
the revolving bail fund itself,

that's been the easy,
elegant solution, right?

That's the easy part,
that's direct service part,

we can scale that across the country.

The ground game,

the teams that work as bail disruptors
for the Bail Project

at different locations across the country,

they have to take our model

and adapt it to the unique needs
of each jurisdiction.

And that's where it becomes complex,

and it's very resource intensive,

because criminal justice
is incredibly local,

and so how each system operates is unique.

And what the needs of our clients are

are incredibly different
from jurisdiction to jurisdiction.

So you can be in Oklahoma

and what you know is that communities
have been ravaged by the opioid crisis,

and when we're bringing people home,

we have to connect them to services
that might address that.

When you're in Spokane,

you're talking about an epidemic
of homelessness.

So when you're thinking about providing
direct services and bringing people home,

you have to be mindful of the fact
that in that jurisdiction

that may be the biggest
obstacle for people,

is that they don't have shelter.

And so we need to adapt our model
in every jurisdiction we go to

to address the needs of that community.

MZ: I could only assume
that some of these communities

are not so happy that you're there.

That must be a reality of it.

Do you have to win
hearts and minds as well,

in some of these places?

RS: So I think it depends
on the definition of community.

So communities that have been targeted
by our criminal legal system

for generations,

communities of color,
low-income communities,

marginalized communities,
women across the country,

they are more than happy to see us come,

because we are just an immediate lifeline.

Bail funds are a tool to get people out
as an immediate lifeline,

it's not a long-term,
systemic answer, right?

But people are, of course,

they want to get out,
go back to their families,

their communities want them home.

Has there been some opposition?

Sure, of course.

You know, when we go into a new site,

we do so carefully,
we prospect it carefully,

we try to understand
who are our partners on the ground

that might help us in this initiative,

grassroots organizers,
not-for-profit organizations,

systems holders, sheriffs, right?

Who is going to support us
and who our opposition might be.

MZ: You also put some of the people
that you bail out,

you bring them back, right,
as program officers.

Is that part of the system

that you're trying to make a community
around your efforts in some way?

RS: So when we're hiring
for local jurisdictions,

we always hire locally.

If we open a site in Baton Rouge,

we hire people from Baton Rouge
and are connected to the community.

We try to prioritize people
with lived experience

in the criminal legal system,

or people who have been
personally impacted by the system.

We think it's important,
they understand the system best,

they have the best solutions
because they're closest to the problem

and they're credible
messengers for the clients

that we're going to be interviewing
and providing bail for.

MZ: So you touched on this,

criminal justice reform
has become a hot topic,

you must be like, "Yay, finally
people are talking about this thing

that I've been banging on
about for decades."

Here in California actually,
though, there has been a big change.

Now it's complicated,

but my understanding is
that they're getting rid of cash bail.

Good thing, bad thing,
not quite that simple to explain?

RS: So everything
about criminal justice reform,

and particularly bail reform,

is way more complex than it looks, right?

So it's easy to have a hashtag
that says "end cash bail."

Totally right.

We have to eliminate
unaffordable cash bail forever.

We know money isn't
what makes people come back,

it's a myth, let's get rid of it.

But the question about what comes next
is very, very complex,

and California was a good example.

There was a bill that worked its way
through the political process,

called SB 10.

It started out as what looked like a bill

that would actually move
towards more decarceration.

By the time it came out
of the political process,

frankly it was a bill that almost nobody
in the community would support,

including the Bail Project.

And it had gone through

some changes in that process

that placed, you know, pretrial services
in the hands of law enforcement,

that put people through risk algorithms,

that sort of had a lot
of the telltale signs of a system

that was going to recreate the same
racial inequity and economic inequalities

that we had always seen,

and so, that bill actually
moved through the process,

and we thought that was the end.

But then the bail bond industry
actually got 400,000 signatures

to put it on the ballot.

So in November,
Californians will be voting

on whether or not SB 10
should go forward or not.

MZ: So Californians in the audience,
you will be voting on this.

How should they vote?

RS: So I'm not so bold as to say that.

I may be audacious,
but I'm not that audacious.

But what I will say is,
educate yourselves.

Understand what you're voting on.

Understand what it means
to hold somebody in jail

who hasn't been convicted of a crime

simply for their poverty, right?

And ask yourselves, do we want to have
a criminal legal system

that incarcerates people
before they've been convicted of a crime?

Do we want to have a criminal legal system

that continues to target
communities of color

and low-income communities
across this country,

do we want to continue
the damage and the devastation

that we have created
through mass incarceration?

So I'm not taking position
on which way you should vote,

but take that into account.

MZ: She told me backstage,
"I'm not sure how I'm going to vote yet."

I mean, it's that difficult, right?

RS: Well, it's a little more complicated.

It's the form of SB 10 as it exists

is not a bill that most of us
would support, right?

But eliminating cash bail is critical.

MZ: Alright, I want you
to forecast into the future.

What does an ideal system look like?

You have said that America
is addicted to incarceration.

Does there have to be
a cultural shift around that

in addition to making some of the changes
that you're talking about?

RS: So, you know, we have to reckon
with what we've done.

If we don't face head-on

how we've used our criminal legal system,

and who we have targeted,
and how we've defined crime,

and how we punish people,

we're never going to move forward.

So we are going to have to reckon
with the harm that we've caused.

And in so doing, we're going to
have to shift our lens.

And that's a real challenge for us, right?

We're going to have to shift our lens

from a system that's about punishment
and cruelty and isolation

and cages

to a lens of,

"What do you need, how can we support,

where have we failed,

how can we make that better,

how can we restore and how can we heal?"

And if we aren't willing to do that,

criminal justice reform
is going to be stalled,

or what comes next
is going to be really problematic.

It is a fundamental shift
in the way that we see

our criminal justice system.

And make no mistake about it,

the context of our criminal legal system

is we have turned our back
on social problems, right?

So we have turned our backs
on homelessness

and dire poverty and structural racism

and mental health challenges

and addiction

and even immigration status.

And instead, we have used our jails
and our criminal legal system, right,

to answer those problems.

And that has to change.

MZ: It's not the answer.

RS: We have done damage
to millions of people

and in so doing,
we have harmed their families

and we have harmed their communities,

and we need to reckon with that.

MZ: So I want to ask you finally --

(Applause)

You've got some of the smartest
women in the world here,

surrounding you.

They're energized,

they want to know
what to do with that energy

when they go back to their communities.

And actually I know you took some of them
to see a local jail yesterday, right?

RS: I did.

MZ: Can you tell us about that?

RS: So, here's what we need to understand.

This problem is all of our problems.

Each and every one of us is implicated

in what our criminal
legal system looks like.

There is no escaping that.

It reflects each of us.

Every time a prosecutor gets up and says,

"The people of the state of California"
or "New York" or "Idaho,"

they are speaking in your names.

So we have to take
some ownership over this.

And we really have to own the fact
that this has to change

and this implicates every one of us.

So what you need to do, is as I said,

you need to get educated,
you also need to get proximate to this.

And by getting proximate,

I mean you need to go and see
how our criminal legal system operates.

That may mean go to a local
criminal courthouse,

sit in the back of a courtroom,

and I promise you will never be the same,

it's what made me become
a public defender all those years ago.

And yesterday, I took a bunch of people
from the TED conference

to the local jail here.

I have been coming in
and out of jails for 38 years.

And I have never not been shocked,

and yesterday was no exception.

I was shocked, I was horrified.

The conditions were dehumanizing
and degrading and horrifying --

and incomprehensible

if you don't actually see it
with your eyes.

It was shocking.

And I saw it on the faces
of the people that I was with.

So we have to know that's what we're doing
in the name of justice in this country

and stand up against it.

But the only way you're going to do that

is if you fight back the narrative
of fear that enables that to happen.

And what do I mean by that?

I promise you, every single time
you get into a conversation

about bail reform
or criminal justice reform,

here's what happens:

everybody starts talking
about the scary case.

"But what about the guy who did X?"

So here's what I'm here -- to rest --

Just have you rest a little bit
and sit with this, right?

Despite the fact that we have used
our criminal legal system

and destroyed millions of people,

that we have harmed people,

exposed them to trauma and violence,

day after day after day,

the truth is, when people come home,

bad things happen rarely.

It is the exception, not the rule.

It is the extraordinary, not the normal.

But if you don't know that,

if you don't hold on to that,

if you can't support that
with data, which we can,

you will be drawn
into the narrative of fear

that will lead us to justify

the kinds of horrors we have inflicted

upon communities of color
and low-income communities

and people that become
ensnared in our criminal legal system

for far too long.

So get educated --

(Applause)

Get educated, proximate, stay vigilant,

do not be drawn
into the narratives of fear,

which are wildly and grossly
racialized anyway.

Check it when you hear it,

question it when somebody says it to you,

ask for the data,
"Why do you say that," right?

And don't get drawn into that.

And if you do,

I'm actually convinced

that we're at a moment where we will build
a better criminal legal system.

If you get proximate to this

and you actually begin to engage in it,

we will not only be a better country,

each of us will be better people.

And that is a worthy goal.

MZ: It's a very worthy goal.

(Applause)

I mean, did I hit the jackpot
with my first interview, or what?

She is badass.

Robin Steinberg, the Bail Project,
thank you so much.

RS: Thanks.

MZ: I'm Manoush Zomorodi,

I'm the new host of the TED Radio Hour,
and I'll see you in the spring.

(Applause)