When poor women—legally innocent women—can’t pay their bail to get out of jail, whole communities suffer. Here’s what women activists are doing to fix this.
This piece originally appeared in the Summer 2018 issue of Ms.
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Clutching a clear plastic bag of belongings, Lisa Oxendine walks slowly out of the Durham County Detention Facility and into a crowd awaiting her arrival.
“I’m so glad to meet you,” Serena Sebring says, handing her a bouquet of bright flowers. “Welcome home.”
Sebring is a regional organizer for Southerners On New Ground (SONG) in Durham, N.C. She and about two dozen volunteers are here to bail women out of the jail as part of the Black Mama’s Bail Out—a joint campaign that took place across the U.S. ahead of Mother’s Day.
Oxendine was the first to emerge over the four-day action in Durham, in which SONG spent $18,900 to free nine women from the jail and convinced judges to remove the bond requirement for two more, allowing them to be released as well.
“We wanted to call attention both to the importance and centrality of black women, black mothers and black caregivers to our communities, [as well as] to the particular impact mass incarceration is having on black women,” Sebring says.
Her group is part of a swelling national movement to abolish the cash bail system, or at least limit the use of bail to violent cases—because, as Sebring puts it, the bail system requires legally innocent people to pay a “ransom” to get out of jail while they await trial. And too many simply cannot afford to pay. Research suggests just a few days in jail pretrial can jeopardize a person’s housing, employment and public assistance and raise her likelihood of pleading guilty, being convicted and reoffending.
The cash bail system takes a distinct toll on women awaiting trial. While wives, girlfriends and mothers bear the brunt of bail costs for the men in their lives, women often have little means to buy their own freedom from a system that wasn’t designed with them in mind. And the effects of their incarceration radiate outward to their families and communities.
Unable to pay a $1,000 bond, Oxendine spent eight days in jail, accused of breaking into a truck. When a SONG volunteer first came to ask if she wanted to be bailed out, Oxendine thought it was “too good to be true.”
“But they kept coming back to see me,” she says.
Taking a break from speaking with SONG about what she needs now that she is out, she said she hoped to visit her sons for Mother’s Day.
Across the country, women-led groups like SONG are taking the lead in efforts to reform the bail system. And women policymakers are instigating change including at the federal level. Sen. Kamala Harris (D-Calif.) has introduced legislation that would give grants to states to put alternatives to money bail into place, and require them to collect data on those measures and report back.
“Here’s the deal: We have gotten to the point where in courtrooms around America, someone is released before their trial based on whether they can afford to write a check or not and not necessarily based on whether they present a risk to their community,” Harris, a former prosecutor, told participants at a 2017 conference on women’s incarceration. “That ain’t right. It’s not fair.”
Many state and local lawmakers agree. In the past year alone, officials in Nebraska, Illinois, Montana, Connecticut, Philadelphia, New Orleans and Atlanta have moved to limit the use of money bail for lower-level offenses, introduce risk assessment tools to try to remove bias from pretrial release decisions, and expand programs for people who are released pretrial. The District of Columbia all but eliminated cash bail except for rare, serious cases in the 1990s, and New Jersey and Alaska more recently followed suit.
Of the nearly 110,000 women in local jails, about 60 percent are awaiting trial and haven’t been convicted. About 80 percent are mothers, most single moms like Maranda O’Donnell, whose arrest in Harris County, Texas, led to one of the most significant legal challenges to the bail system. Her story shows how an arrest can push a person teetering on stability over the edge.
O’Donnell was pulled over driving to see her then 4-year-old daughter and didn’t have a valid license. Unable to pay bail, she spent two days in jail.
Earlier this year, an appeals court affirmed that the county’s bail system violated O’Donnell’s and other plaintiffs’ rights to due process and equal protection.
Susanne Pringle, interim executive director of the Texas Fair Defense Project, a nonprofit that’s part of the lawsuit, says those two days likely cost O’Donnell a new waitressing job and jeopardized custody of her child.
“[Bail] is not supposed to be a punishment. It’s not supposed to be used as a way to detain someone pretrial … but when you set bonds that high and for someone who is being arrested for something that is clearly a poverty offense, that’s what it is—it’s a detention order,” Pringle says.
While men make up 86 percent of the country’s overall jail population, according to the Bureau of Justice Statistics, the number of incarcerated women has grown 14-fold in the past half century, a rate outpacing men.
“As communities are increasingly focusing on reducing jail populations, the number of women continues to grow, so that suggests the reform efforts around the country aren’t reaching women to the same extent they’re reaching men,” says Elizabeth Swavola, senior program associate with the Vera Institute of Justice Center on Sentencing and Corrections.
Like O’Donnell, most women in jail aren’t there on violent charges.
More than three-quarters of women being held pretrial are facing property, drug and public order charges such as prostitution—crimes often driven by poverty, mental illness and substance use. A third of women in jail have a serious mental illness, twice the percentage of men in jail, and six times the rate for women in the general population. The vast majority—86 percent per one study—have experienced sexual violence in their lifetimes.
Women in U.S. jails report high rates of trauma, mental illness, drug use and medical needs that jails—resource-strapped and designed around men—are ill-equipped to handle.
Women are less likely than men to have the money to pay, even when assigned very low bonds. During a bailout SONG held in Durham for Black Mama’s Day last year, the group posted bail for a woman who couldn’t afford even a $150 bond.
A 2015 Prison Policy Initiative analysis found that white men had a median pre-incarceration income of more than $20,000 per year. That compares to white women, who had a median income of just under $16,000; Hispanic women, who earned about $12,000; and black women, with just over that amount.
Andrea Hudson spent 51 days in the Durham County Detention Facility in 2012, unable to post a $30,000 bail or pay about 10 percent to a bondsman.
She missed an appointment to secure an apartment with Section 8 rental assistance and lost her voucher. Her then 7-year-old son and 17-year-old daughter moved between a friend’s house and the home of estranged relatives. Because of the charges—including fraud and exploiting an elderly person—she lost jobs as a home health care worker and school custodian.
Desperate to be released, she finally agreed to plead guilty to some of the charges in exchange for the rest being dismissed. The dismissed charges were ultimately expunged, but she was jailed again for a subsequent assault she says she didn’t commit, and because that charge violated previous probationary terms, bail was set at an even higher amount.
“I missed my kids all over again, and once again my son went to school and came home from school and his mother’s gone,” she recalls.
Her daughter, Josselyn, took 12-hour shifts making light bulbs once she graduated from high school to support herself and her brother and get an apartment. Visits were difficult to arrange and painfully inadequate. They couldn’t touch or console each other as they cried, and had to yell through thick glass over the other visitors.
“It was hard because there was nothing I could do,” says Josselyn, now 23.
In Connecticut, visits between incarcerated mothers and their families are particularly challenging. Here, all women—regardless of conviction status—are held at one facility on the coast.
Beatrice Codianni spent 15 months at the Danbury Federal Prison awaiting trial for her role in the Latin Kings gang. Her three sons struggled to afford rent—let alone gas money to make regular visits. Her youngest, 16 at the time, had to quit school to work.
Mother’s Day was the hardest, she recalls.
“For those who are lucky enough to get a visit,” Codianni says, “they beat themselves up. And they shouldn’t, because they’re in jail and they don’t have to be. Most of them would be home if it wasn’t for the bail system.”
Codianni now runs Reentry Central, a national website for professionals working in criminal justice and reentry, and serves on the advisory board of the Connecticut Bail Fund. She says women are often stuck in jail on bonds that are so low, the bail agents won’t take them because the profits would be too slim.
“You’re taking away a crucial piece of a child’s life and for reasons that aren’t really that serious,” like drug possession and trespassing, she says.
Hudson, who spent just under two months in the Durham jail, says it took years to put back together what was broken in that time.
She still doesn’t have housing of her own. She lives with her daughter, whose name is on the lease because Hudson received an eviction judgment for not paying rent while she was detained.
But her detention revealed her purpose. Instead of becoming a parole officer, as she was studying to do when she was arrested, she’s establishing a bail fund at the nonprofit Southern Coalition for Social Justice, and helps defendants and their families advocate for themselves in court.
In Hudson’s experience, women tend to be embarrassed by their charges or the circumstances surrounding them. She recalled one woman she met in the Durham jail who had been arrested with her boyfriend when police found drugs in their car. The boyfriend arranged for himself to be bailed out but left her inside.
To Cara Smith, chief policy officer for Sheriff Tom Dart of Cook County, Ill., this sounds similar to what she witnesses in Chicago’s jail.
“What we find with male detainees is that there are lots of people that want to help them, want to raise money, want to bond them out—whether it’s girlfriends, wives, mothers, et cetera,” she says. “The women that come into our custody seemingly are without that band of support on the outside.”
This is particularly true for women who experienced abuse, trafficking and drug use in relationships prior to their arrest, says Hanke Gratteau, director of the Cook County Sheriff’s Justice Institute.
Under Gratteau’s leadership, the Justice Institute identifies people unjustly held in the Cook County jail and advocates for their release. According to Smith’s research, last year about 1,200 people served enough time pretrial at the Cook County jail that by the time they were transferred to prison, they had not only satisfied their sentences but had served an additional 321 years collectively.
Because women make up just a fraction of the jail’s population, not many come before the Justice Institute, but often “the most compelling end up being the women’s cases,” Smith says.
That includes a woman now in her 40s jailed for the first time on a warrant for not completing community service in her 20s, and a pregnant woman brought in after missing court and denied bond, guaranteeing she would give birth in jail before her next court date.
In Texas, the number of women in jail is growing, even though arrest rates are declining, according to a two-part report authored by Lindsey Linder, lead attorney with the Texas Criminal Justice Coalition. She says Texas, like other states, hasn’t been intentional about addressing women’s incarceration because women comprise the smaller portion of the jail population.
But that’s starting to change because of women involved in reform efforts—from formerly incarcerated women telling their stories; to activists who convinced Austin officials to delay building a new women’s jail and spend a year studying alternatives to pretrial incarceration; to the attorney, researcher, designer, sheriff and judges who contributed to the report.
Despite the fact that one in four women (and one in two black women) have an incarcerated family member, women’s voices are too often left out of conversations about reform, says Gina Clayton, founder and executive director of the Essie Justice Group. The California-based nonprofit connects and empowers women with incarcerated loved ones to advocate for criminal justice reform. About 30 percent of Essie members have been incarcerated themselves, Clayton says.
When a member of the Essie Justice Group went to the California legislature to speak about the need for bail reform, at least one person questioned why she was speaking and not the men in her life perceived to be more directly impacted by the issue.
“Our understanding that mass incarceration impacts male people of color is one that is informed by our own existing biases around what we don’t see and what we’re willing not to see happening to women, and particularly what is happening to black and brown women,” Clayton says.
Essie members have lobbied state legislators to restrict the use of money bail in California; a bill passed the state Senate but stalled in the Assembly last year.
“Bail is how we’ve been able to create a conviction machine in this country, and I think that’s why bail is a lever for us,” Clayton says. Once women are convicted of a felony, their record can disqualify them for jobs, housing or benefits like food stamps.
Lisa Oxendine, bailed out by SONG in May, is caught in the conviction machine. Before she could make that trip to see her boys, she was back in jail—this time under an $11,000 bond—for violating previous probation terms. Last year, SONG freed 14 Durham women in its bailouts. Out of all the tales of homes, jobs and dignity lost to pretrial incarceration, organizer Jade Brooks remembers the story of one woman SONG wrote to asking if she wanted to be bailed out.
“She was sleeping with our letter under her pillow,” Brooks says. “That was, for her, a symbol of freedom.”