Image above: Ralph Abernathy (left) and King pass through a corridor at the Birmingham, Alabama, city jail just after their release in 1963.
In the course of his life, Martin Luther King Jr. was arrested 30 times. Most famously, in April 1963, Eugene “Bull” Connor, the police commissioner of Birmingham, Alabama, had King arrested for demonstrating in violation of a court injunction. For that crime, King spent 11 days behind bars, during which he wrote his famous “Letter From Birmingham Jail.”
King would likely have stayed in jail even longer but for the intervention of A. G. Gaston, a black millionaire businessman who posted the $5,000 bail for King and his colleague Ralph Abernathy. King is said to have wanted to continue his political statement by remaining confined. But Gaston, fearing that the civil-rights movement would suffer if left without King’s leadership for too long, persuaded him to accept the assistance.
Having people get arrested and sent to jail was a foundational strategy of the civil-rights movement, meant to illuminate the injustice and immorality of racial inequality. Since 1963, however, the number of people sitting in jail has skyrocketed. Of the approximately 630,000 people held in more than 3,000 local jails across the United States, 70 percent are awaiting trial and therefore are legally innocent, according to the Prison Policy Initiative. The Vera Institute of Justice reports that black Americans are jailed at nearly four times the rate of white Americans.
Being in jail and unable to post bond can create instability in somebody’s life. Research suggests that spending as few as two days in jail can damage a person’s physical and economic well-being and increase the likelihood of cycling back into the criminal-justice system.
Most people, unlike King, can’t find a millionaire willing to post their bail. Throughout the country, however, small organizations are trying to step into that role. In Boston, Chicago, Nashville, New York City, Seattle, and several other cities, community groups are helping people post bond and also, more ambitiously, trying to end the practice of requiring money for bail. This reflects a growing belief that using money to make sure a defendant will show up in court is inherently unfair to the poor—that it not only creates further instability in their lives but simply doesn’t make a lot of sense. Advocates of ending the “money-bail system” would prefer to have a judge assess the risk that defendants might flee before deciding whether to release them pending a trial, rather than automatically relying on money as a guarantee.
Community bail funds work by pooling donations to spring from jail people who cannot afford to pay their way out. Once a fund has posted bail, an individual is free to go home, with the expectation that he will stay out of trouble and appear in court on a scheduled date. After the defendant shows up and the case is resolved, the bail money is returned to the community fund, to be used for another defendant.
The recent surge in protests that began in Ferguson, Missouri, has brought more attention to bail funds and pushed them to expand the scope of their work. Several community funds aren’t only bailing people out but also trying to dismantle the very system in which they participate, by organizing protests, lobbying state lawmakers, and using social media and op-eds for publicity. “I don’t work with any bail funds who don’t explicitly want to see the end of the money-bail system,” says Pilar Weiss, who leads the National Bail Fund Network.
Since 1992, judges in Washington, D.C., generally have not required money to post bond but instead assess a defendant’s flight risk and the danger he poses to the community when they decide between jail and freedom before trial. This seems to have worked. More than 85 percent of the defendants released from 2012 to 2017 weren’t arrested again before their court cases were settled, according to the city’s Pretrial Services Agency; of the few who got in trouble again, only 2 percent were charged with a violent crime. In more and more states, including Arizona, Kentucky, New Jersey, and parts of Alabama, judges now may evaluate a defendant’s risk of fleeing, by looking at previous arrests, prosecutions, and convictions.
Activists worry that these sorts of assessments may exacerbate racial imbalances among prisoners, unless they take into account that people of color already face discrimination in the judicial system. Even so, the prevailing practice of relying on money to make sure people charged with a crime appear in court doesn’t stand up to scrutiny. Bail, after all, is intended to keep the public safe: Decisions about whether to release defendants who don’t represent any danger to the public shouldn’t depend on how much money they can raise. And people who do represent a threat to public safety shouldn’t be released simply because they can afford an expensive bond. As King wrote before he was bailed out of Birmingham Jail: “An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself.”
This article appears in the special MLK issue print edition with the headline “Freedom Ain’t Free.”