LOUISVILLE, Ky. – It was after midnight when Louisville police hauled the last of 127 people into jail following Wednesday night’s Breonna Taylor protests, but bail fund advocates were already at work.
Checking records and calling relatives to see who couldn’t afford to bail themselves out, Shelton McElroy within hours posted a bond from a pool of donated money, scrambling to set up post-release support, from transportation to legal referrals.
Organizers know it doesn’t take long for anyone stuck behind bars, whether on a minor or major charge, to lose a job, an apartment and their footing in life because they can’t afford pretrial bail.
“We’re always in action mode … just trying to get people out,” he said.
The work of nonprofit bail funds in Louisville and across the country — which serve low-income people languishing in jail pretrial solely because of unaffordable bail — have gotten both a national spotlight and massive financial infusion after receiving millions in donations since racial justice protests began in late May over police killings.
While bailing protesters has gotten much attention, the majority of protesters in Louisville have been released without cash bail. Yet the influx of funds has bolstered the funds’ everyday work with average citizens, stuck in jail under a cash bail system that discriminates against the poor and disproportionately impacts people of color.
Nationally, about 60% of people in U.S. jails are awaiting trial, many because they can’t pay their bonds.
“Rich people get out of jail. If you’re poor, you sit in jail,” said veteran criminal defense attorney Ted Shouse, who has worked with the Bail Project, one of two Louisville funds.
Despite their new largesse, leaders of Louisville’s two bail organizations and other advocates are still not able to fill the need, especially in rural Kentucky. They want lasting change that will put them out of a job.
“Permanent bail reform is still so needed,” said Shameka Parrish-Wright, the Bail Project’s manager who also is a protest leader — and who herself was arrested Thursday during demonstrations on charges that her lawyer said are bogus.
While she was released from jail the same night without a cash bail, too many others with low-level charges commonly are not, advocates say.
Proponents, which include some prosecutors, want to do away with bail for all but the most dangerous defendants. They point to studies that show defendants with no bail are just as likely to return to court as those with bail.
They say new attention to the funds’ work — coupled with coronavirus-related jail releases and trial delays that are leading some judges and prosecutors to rethink and minimize cash bail — makes for a promising window for long-sought legislative reform.
“What’s happening right now is unprecedented in terms of how many people are aware of the problem,” said McElroy, of the Louisville Community Bail Fund, who argues cash bail pressures defendants to accept plea deals, fuels mass incarceration and ruins lives.
Louisville’s two bail funds — the Bail Project, part of a national network that received $16 million in donations since protests began, and Black Lives Matter-run Louisville Community Bail Fund, which got more than $3.5 million — together as of mid-September had posted bonds for at least 483 people since protests began.
The Louisville Bail Project has helped 2,300 people since it started in 2018 and 380 since April, among them 37 protestors. Most fell under the group’s $5,000 soft bail cap. The majority of those it helps have a felony charge. The Louisville Community Bail Fund has bailed out at least 103 people since protests began, focusing on those with larger bails averaging $20,000, said one of its coordinators, Channelle Helm.
Both said they provide pretrial support such as court reminders, rides and housing, job and legal referrals. MeElroy said clients are met at the jail door, with water, a phone to use, clothing if they need it, a ride — and a plan to support them.
At least 90% of clients return to court, Parrish-Wright said.
Kentucky’s pandemic-related efforts to administratively release defendants, embraced by some prosecutors, defense attorneys and judges, is also bolstering the case against cash bail as people return to court and stay out of trouble.
Though data is still being collected, in many cases people aren’t reoffending or failing to show up to court at significantly higher rates, according to some judges, attorneys and prosecutors.
“This is helping change people’s minds. The old lock-them-up-and-throw-away-the-key until their trial, that group is being proven wrong,” said Jefferson Commonwealth Attorney Tom Wine.
Louisville’s jail population has fallen to less than 1,300 inmates, compared to being routinely more than 2,000 last year. But that could ramp back up after the pandemic subsides, and some state officials have said a return to pre-pandemic levels is possible.
Shouse said the group would like to “work its way out of a job” through lasting reform.
“This is the moment,” he said, noting that protests’ spotlight on criminal justice inequities including cash bail and the pandemic have raised awareness and “brought us to a place where real bail reform is possible.”
Under Kentucky law, judges are required to set bail based on the seriousness of the alleged crime; the potential danger of release to the community; the defendant’s ties to the community; and the likelihood the defendant will appear.
While federal courts can hold defendants with no bail, judges in Kentucky must set bail in all but capital murder cases. However, it doesn’t have to be full cash. They can release a person on their own recognizance, order an unsecured bond where no money is due unless the person fails to return, including some signed by a family member or third-party. Kentucky doesn’t allow bail bonds businesses.
Bails are supposed to be “reasonable,” but a person’s ability to pay is often given scant consideration, Shouse said. Instead, bails are set by “custom, practice, moral disapproval and the charge before the judge,” he said.
Judges get pretrial services risk assessments on a defendant. But sometimes bail decisions occur in minuteslong hearings that can be “not as thorough as they should be,” said Jefferson County Attorney Mike O’Connell, who favors cashless bail for lower-level cases, with fuller hearings on more serious ones.
Sometimes people with overdue fines or restitution for crimes like criminal mischief are jailed under a bond in the amount they owe. While that prompts some to quickly come up with the money, others are left in jail because they genuinely can’t pay it, said District Judge Stephanie Pearce Burke.
In Kentucky in 2016, there were 64,123 defendants charged with nonviolent, nonsexual crimes jailed before trial because they could not afford their bail, according to a study of state court data by the nonprofit Louisville-based Pegasus Institute. They spent an average of 109 days in jail.
A Kentucky Center for Economic Policy report last year found that 57% of criminal district court and circuit court cases in Kentucky are subject to pretrial monetary bail, with 39% actually resulting in pretrial release.
In the six months Demontez Campbell sat in Hardin County jail, for example, unable to make bail while awaiting trial for third-degree burglary, he lost his job and place to live.
To get out and repair his life, he pleaded guilty and was put on probation. But then he missed a court date and faced another $1,500 bond he couldn’t afford. He turned to the Louisville Bail Project to pay it — saving him, he said, from another devastating setback.
“It would have knocked the wind out of me trying to rebuild my life, my relationship with my daughter,” said Campbell, who also got help with rides to court, bus tickets and job referrals.
In recent years, states from California to New York have enacted changes to limit money bail. New York last year restricted the use of bail for many nonviolent crimes, which reduced jail populations but sparked a backlash after opponents argued some were committing new crimes.
Louisville Democratic State Sen. Morgan McGarvey said he plans to introduce or support such legislation next year, though details haven’t been worked out. Those who work in the court system have different ideas about what that might look like.
Annette Karem, a Jefferson district judge, said she favors reducing cash bail use and adding funding to expand pretrial release conditions like home incarceration or drug treatment. Some prosecutors want expanded detention hearings and bail with more non-financial conditions. Shouse supports releasing all charged with a misdemeanor and or lower-level Class D felonies on their own recognizance unless a hearing is requested.
But state Sen. John Schickel, a Republican, opposes legislative bail limits on certain crimes, which he said would limit a judge’s discretion and could be open to abuse. “Cash bail is really something that protects citizens from being held by the government,” he said.
In January, Kentucky’s Public Advocacy Department petitioned the state Supreme Court to fix what it called a broken and unconstitutional system. It argued that county jails are clogged with people who can’t afford to post bail, which was overused for minor offenses. Kentucky and U.S. constitutions prohibit excessive bail.
Gov. Andy Beshear has urged the legislature to consider changes to the bail, parole and probation systems as part of an effort to ease jail and prison overcrowding.
“It seems like everyone agrees it’s an unfair system. But the difficulty is creating a system that establishes who should be let out and who shouldn’t,” said Kate Miller, advocacy director of the American Civil Liberties Union of Kentucky. “But I do think all this will add momentum.”
For now, people like Mitzi Wilson are relying on bail funds.
About two years ago, she said, the $10,000 bond holding her son on a robbery charge might well have been a million.
“Couldn’t afford the bail, not even a lawyer, none of that,” she said.
Freed with the help of both groups, her son also got support: rides to probation and help with a job to get his life on track. He was later sentenced to probation. He’s now “staying out of trouble,” Wilson said. “The help was so important.”
Such work began having a national moment after millions of dollars were donated to such funds when protests sparked by police killings of Taylor in Louisville and George Floyd in Minneapolis first broke out.
The Minnesota Freedom Fund first gained attention, drawing tens of millions in donations, and since then celebrities and activists have helped drive donations to funds around the country.
The 80 funds in the National Bail Fund Network have bailed out more than 10,000 people in recent months, the group said.
Louisville’s Black Lives Matter group had started bailing people out since 2017, Helm said, but it was few and far between until donations flooded in. “It’s been really exciting. We’re a grassroots organization. So it’s been extremely overwhelming,” Helm said.
Police and prosecutors have long raised concerns about judges releasing defendants accused of violent crimes to await trial, and some in Louisville cited concern about the bail fund posting bonds of up to $100,000 on charges such as assault and domestic violence. Wine said his office has had to notify victims in some cases.
McElroy said they give each case a “high level of consideration” of the circumstances, talking to attorneys and families, and consider victims. And he said that even people with serious charges should be presumed innocent and allowed to prepare a defense outside of jail just like wealthier defendants.
Research also shows people incarcerated pretrial are actually more likely to be found guilty and to receive harsher sentences, according to the Kentucky Economic Policy Center.
“It’s a way to pressure you into making a plea deal,” McElroy said, which he said has made some prosecutors reluctant to embrace bail reform.
The funds get referrals from public defenders, calls from parents or phone calls from jail. The Bail Project reviews documents and talks to inmates and families to decide who could benefit from bail, what support they have and need.
In Louisville, the vast majority of protesters have been released on their own recognizance, with some being stuck with higher bonds on more serious charge or because of past charges such as missing a court appearance.
Many of the protesters arrested Wednesday in the wake of the decision not to charge any officers directly in connection with Taylor’s death were also released on their own recognizance, some advocates said.
On a Friday earlier this month, Bail Project client advocate Savvy Shabazz walked into a downtown bank and withdrew $40,700 from the bank teller.
He slid it into his pocket and walked down to the courthouse to free the latest 11 jail inmates — each behind bars solely because they couldn’t afford their bond.
Once they’re out, the Bail Project offers support so they reappear in court. It could mean rides, bus tickets, housing or job referrals and reminders and help getting to court appointments so they can get the money back and reuse it.
”The money we used to get you out? We need those funds to get someone else out,” he tells clients.
*story by USA Today