The use of cash bail has taken lives and ruined families, how long before the system

 

By Ally Ross
Special to the Pittsburgh Current
info@pitsburghcurrent.com

On the night of February 14, 2019, a handful of Pittsburghers gathered at Repair the World, a local Jewish cultural center, for “Love Beyond Bars.” It was a celebration of the first week of bailouts by a new local organization, the Bukit Bail Fund. Among the handful of speakers and performers that night was a man named MAN-E, a musician who had learned of the event through 1Hood Media, a collective that uses art to educate others and inspire change. His song “Da Loccs” began,

To my people locked up doing time

Don’t ever think because you’re out of sight you’re out of mind

Like Tupac said, the pen’s right across from hell

And every Black male in my family’s been to jail

The song wove together the stories of his cousins, his close friends, his brothers, and himself. Since the age of 16, MAN-E has been arrested four times and his cumulative bail amounted to $102,000. Once, his mother had to put her house up to a bail bondsman because his family could not afford his freedom. He’s been acquitted of every charge. 

I know you’re innocent, I’ll never doubt you, he promises in the chorus.

Later that night, MAN-E met a member of the Bukit Bail Fund for the first time, and was invited to come to a meeting. Though he had always felt passionate about the issue of mass incarceration, a recurring topic in his music, this was where he learned about campaigns and communities working to end cash bail and pretrial detention. 

From then on, he was dedicated to the work.

The Bukit Bail Fund was named after the late Frank “Bukit” Smart Jr., who was arrested on January 3, 2015 and died in the Allegheny County Jail less than 48 hours later. Smart, who took medication each day to prevent seizures, was deprived of those pills the morning after his arrest because the jail’s medical cart had already passed through his part of the facility before his medical screening. That evening, he finally received his medication.

Too little. Too late. Smart suffered a seizure overnight.

When someone suffers from a seizure, there are a few ways that bystanders can help them get through it. It’s recommended to turn the seizing person on their side, place something soft underneath their head, loosen anything around their neck, and, if necessary, call 911 and allow paramedics to take over. It’s not recommended to handcuff them, shackle them, and use the full weight of four or five corrections officers at once to hold them down on their stomach, as Allegheny County Jail employees did to Smart that night, according to court records. In the same report, one nurse gave an account that Captain Robert Bytner, the shift commander, was at one point holding him around the neck in a headlock. He died shortly after midnight.

“I’ll go a little further than saying he just died at the jail. I’ll say that they killed him,” MAN-E says.

The Allegheny County Medical Examiner’s Office found that Frank Smart Jr. died as a result of his seizure disorder, and noted that the levels of anti-seizure medication found in his blood were nearly at subtherapeutic levels. Dr. Todd Luckasevic, who performed the autopsy, also concluded that prolonged physical restraint in the prone position contributed to Smart’s death. The form of restraint used against him is explicitly prohibited according to the Pennsylvania Department of Corrections policy, but no corrections officers deposed in the lawsuit against the county said they were made aware of this policy. 

In 2018, the county paid a $950,000 settlement to Smart’s nine children. By late 2018, the Bukit Bail Fund had been founded in his name, an abolitionist group with the mission to ensure that no person is incarcerated just because they can’t afford bail.

 

***

 

In Pennsylvania, magisterial district judges have five options when considering how to set a defendant’s bail. They can release the defendant on recognizance; on non-monetary conditions; on an unsecured bail bond, where the defendant agrees to pay a fixed sum if they don’t follow the conditions of the bond; on nominal bail, where a small amount of cash bail (the Code lists $1.00 as an example) and a designated person or organization ensure the return of the defendant; and on cash bail. This is the last option on the list, one which should only be considered as a last resort.

But the text of the law is one thing; the way it is carried out is another. In a word, you could say bail law in Allegheny County is carried out inconsistently — the magisterial district judges here vary widely in their bail practices. According to a 2019 report from the ACLU of Pennsylvania, some judges in Allegheny County assigned monetary bail at more than half of their preliminary arraignments in 2019, while others went as low as 1.6%. Even when you look at the countywide data, there are still major disparities: Black defendants had cash bail set in 35 percent of their initial bail assignments from February to June of 2019, while white defendants had it set in just 22.5 percent of such assignments. This trend continued when the data was controlled for the charges set — Black defendants faced cash bail at higher rates for the same lead offenses as white defendants. As a result, they spend an average of 21 more days in jail.

You don’t have to spew these statistics at Black defendants like MAN-E for them to know the disparity exists. They’ve seen their white counterparts get released on recognizance while they’re assigned thousands of dollars in bail for the same crimes. They see that there is a presumption of innocence only for some people — “Not people like me,” MAN-E says. “Not Black people, not people from Homewood.”

Though the story of Frank Smart Jr.’s death is chilling and upsetting, it’s also far from uncommon. Three-quarters of all jail deaths nationwide happen to people who are still awaiting trial, and more than one-third of deaths happen within the first seven days of incarceration. Those who survive the jail may still lose their lives as they know it — their jobs, custody of their children, their homes. The families waiting for their loved ones to return may face food and housing insecurity.

MAN-E has seen this firsthand, both in his community and in his own family. His father was not in the home for the duration of MAN-E’s childhood, and while he was at times incarcerated (including jail time for unpaid fees, another punishment for those living in poverty), this wasn’t the sole cause of his absence. 

MAN-E was born in 1989, at the height of the crack cocaine epidemic. His father started using the drug and was put out by MAN-E’s mother before their son was born. MAN-E’s father struggled with homelessness, continued to struggle with substance use and would at times return to the house begging for, or demanding, money. But he still made real effort to stay a part of his sons’ lives: he’d call on MAN-E’s birthday every year, and though he didn’t have the money to take his sons out to eat, he’d stop by every so often to go on walks together.

Today, MAN-E says, their relationship has gotten better, especially since an incident where his father fell off the Birmingham Bridge, broke his neck, and nearly died. MAN-E signed off on the emergency surgery that saved his father’s life. MAN-E’s father is still working on his recovery, no longer uses crack cocaine, and has had secure housing since MAN-E was a teenager. They talk every few months, and saw each other recently for the funeral of MAN-E’s grandmother. That being said, their separation has had an impact on the foundations of their relationship.

“I have a relationship with him as a man, not necessarily as a father,” MAN-E says. 

As for the rest of his family, MAN-E wasn’t exaggerating when he said every Black man in his family has been to jail — he’s the youngest of five sons, and each of them have been incarcerated at least once. He mostly grew up with just two of his older brothers, and saw them cycle in and out of the juvenile system as teens, going through placement and bootcamp. When they turned eighteen, placement became the Allegheny County Jail and even State correctional facilities. Once, three of his brothers were locked up at the same time, in three different penitentiaries. His second-oldest brother was incarcerated for nearly all of MAN-E’s childhood, inspiring more lyrics in “Da Loccs:”

 

Older brothers been locked up longer than they’ve been free

My brother Big Knight went to jail when I was 3

And it was 18 years before he came home

So when he came home man I was already grown

And it was difficult for him to see me as a man

He’s prison-minded and I tried my best to understand

“The reason I say I try my best to understand [is] because I tried to develop a relationship with him when he came out. But, you know, that prison mindset is like, it’s aggressive… it’s cutthroat. And he was trying to be that way with me, and I wasn’t accepting it,” MAN-E says.

People would tell him to be patient, to be understanding, and he did the best that he could. But at the end of the day, he says he felt that they were brothers in name only — they didn’t have that connection that you gain from growing up with someone, and they still don’t. Maybe one day, he says, they will.

 

“There are all these collateral consequences and harms that result from incarceration, and it’s especially egregious when it’s pretrial incarceration because these people are presumptively innocent,” Jessica Li, an editor of the ACLUPA report, says. 

Essentially, innocent people are punished for their poverty, keeping communities of color in a cycle of incarceration, impoverishment, and disenfranchisement. MAN-E saw this cycle play out in his own family. So something needs to change — but how? It’s already illegal to set bail higher than a defendant can reasonably afford, even out of concern for public safety. That’s what bail denial is for, and it’s only supposed to be used when a defendant is considered such an extreme threat to the public that literally nothing other than their detainment will ensure the safety of the community. With restrictions and alternatives to cash bail already embedded in the law, there isn’t much more legislative reform left to do. 

Instead, the ACLU of Pennsylvania says that it is the magisterial district judges and their practices that need to change. They are the ones assigning cash bail in situations where it isn’t necessary, and setting it at levels too high to afford. However, the ACLU believes there are actions the state legislature can take to change bail-setting practices. Mainly, they want to see increased oversight of local magisterial court practices, including mandated data collection on bail-setting practices that would be made publicly available. This would allow not only the state legislature, but also the judges’ constituents, to better understand the scale of the problem and when it occurs.

“The heart of the problem is with the practice, which falls squarely at the feet of MDJs, rather than with the law,” Li says. “Right now they’re making these determinations under no scrutiny, and with no accountability. Increasing oversight could be a huge boon.”

 

***

 

When I meet MAN-E, his face is stuck in time on my computer screen. That is, his Zoom camera is off, displaying instead the profile picture that he once selected. In the picture, he’s sitting in his car, his seatbelt on and his face turned away from the camera, perpetually watching the out-of-frame road ahead. The picture reflects the reality: as we speak, MAN-E is driving to a Stop Asian Hate rally in Oakland.

Though the 32-year-old currently works in construction, his career in activism is so extensive one would think it’s his day job. MAN-E was at the very first meeting of 1Hood, before the group even had a name. He grew as an activist through 1Hood and the Bukit Bail Fund, later co-founding the latter’s sister organization, Jailbreak PGH. 

MAN-E’s activism takes many forms: music, organizing, protesting, direct action, mutual aid, educational campaigns, even testifying. Two days prior to our conversation, he’d served as an expert on a panel before the Pennsylvania House Democratic Policy Committee.

On March 18th, the Subcommittee on Progressive Policies for Working People held a hearing on proposals to eliminate cash bail through legislative action. Yet despite the proclaimed purpose of the hearing, most of the panelists’ time wasn’t spent explaining why they wanted to see the end of cash bail. Of course, they definitely wanted to see cash bail eliminated, and many discussed why and how it has harmed low-income communities of color, but that wasn’t the end-all, be-all of the issue for most.

The core value at stake was increasing pretrial freedom overall — cash bail is only one piece of that puzzle, and perhaps a much smaller one than people believe. A less-discussed but perhaps more relevant piece is the issue of probation detainers, like the one that kept Allegheny County Councilor and Jail Oversight Board Member Bethany Hallam incarcerated for five months while she waited for a judge to officially rule whether she had committed a technical probation violation. (Technical violations can include slights as minor as showing up late to an appointment with a probation officer. Hallam’s was a failed drug test.) Today, around 70% of Allegheny County Jail is held on some sort of probation detainer.

In fact, despite their strong stances against the use of cash bail, many panelists testified that if it were to be prohibited at the legislative level, defendants’ pretrial freedom could be restricted more than ever. When cash bail is eliminated, some new sort of system — some new way to keep restricting people’s freedom in the name of tough-on-crime politics — tends to replace it, and those replacements worry activists.

One of these replacements is electronic monitoring, known to many of its opponents as E-Carceration. Electronic monitoring arguably provides more freedom to an accused person than a jail cell, but it also has its problems. It can create burdensome costs for financially struggling families and normalize intrusive surveillance measures in communities of color, making it more difficult for defendants to break out of the cycle of incarceration. Even more alarming to pretrial freedom activists is the use of risk assessment tools, computer algorithms that determine whether or not a defendant is safe to return to the community. The criteria can include age at first conviction, criminal history, and education level — all of which could exacerbate disparities between Black and white defendants.

One panelist, Philadelphia District Attorney Larry Krasner, supported the use of these risk assessment tools, citing the no-cash-bail system that has been used in Washington, D.C. for the last three decades. Through this system, 88% of defendants are released pretrial without payment, and 12% remain detained pretrial. 

“That’s how it’s supposed to work,” said Krasner. “Ending cash bail does not mean that Ted Bundy goes home while he awaits his trial for killing seventeen people and kills a couple during that period of time. Ending cash bail means we divorce money from the process. You are either held, which happens to a small number, and only where they are grievously dangerous to the community, or you are released.”

Later, in his own speech, MAN-E took the opposite stance. “I think it’s important for me to say that under the proposed system that Krasner wants, I would be a part of that 12%. I would be one of those people who would be considered dangerous based on risk assessment tools,” despite the fact that he has been acquitted of all charges across his four arrests.

The same would be true of Illinois’ recent criminal justice reform law, set to go into full effect by 2023. Under the new law, which eliminates cash bail, charges involving firearms aren’t bailable. “With my cases, I would’ve just been kept in,” MAN-E says. “It was two years before I went to trial to be found not guilty. What happens in that two years? That’s two years of trauma, two years where I’m maybe a financial burden to my family more than an asset.”

It is also two years of financial gain to the state. While there is much discussion of how much it costs state and local governments to incarcerate people for months or years at a time, it is also true that incarcerated folks can be significant profit generators despite their need to be housed and fed.

“All jails and prisons are for profit in some way or another,” Hallam says. “Jail is such a money-making racket that it disincentivizes populations in jails from going down. Because they make more money when the population is up.”

The thirteenth amendment is often said to have ended the institution of slavery, but as documentaries like Netflix’s “13th” have exposed to the public, the use of slave labor endures in American jails and prisons. In the Allegheny County Jail, even those unconvicted of a crime are not paid a penny for their labor. This is allowed because the work is voluntary on paper. But if an incarcerated person is offered a job and turns it down, Hallam says it may come with increased harassment from corrections officers, or being the last person to get your food, your commissary, and your mail every day.

This isn’t the only way that the Allegheny County Jail generates revenue. It costs money to get food at the commissary, which serves better food than the cafeteria (Hallam says daily meals and commissary are provided by the same company, raising concerns about purposeful sabotage of the daily meals to incentivize commissary purchases). It costs money to communicate with family outside the jail as well. Innocent incarcerated people and their families are drained of thousands of dollars just to have good food and contact with their loved ones. Last July, the Pittsburgh Current reported that Allegheny County directly profited from the money spent by the incarcerated. According to the contract, the county will receive $4.3 million in kickbacks from the service provider, Global Tel*Link, a Virginia-based telecom company.

At the same time, Hallam and MAN-E say incarcerated individuals are traumatized by poor living conditions and inhumane treatment. And when they’re let out, they have nothing to show for it.

“When people are found not guilty, or acquitted, there’s no recompense,” says MAN-E. “There’s no policy, there’s no restitution. There’s nothing. There’s just, ‘Oh, now it’s over, and we won’t punish you any further.’” In fact, you don’t even leave with so much as a warning. The Allegheny County Jail has up to 48 hours to release you after your bail has been posted, and it doesn’t go to the trouble of notifying your family when it finally does. More than once, MAN-E has been released from jail in the middle of the night without even bus fare to make it home safely.

This isn’t out of the ordinary. MAN-E and other members of the Bukit Bail Fund co-founded Jailbreak PGH to support people who are being released from jail, as well as those who are still incarcerated. Jailbreak members often set up tables right outside of the jail to assist those who have just been released. If you’re looking for a ride, a cell phone charger, a cup of coffee, a snack, a cigarette, a bus pass, or even a hotel room to stay in, Jailbreak will do everything it can to get you what you need. 

Recently, MAN-E picked up someone from the Allegheny County Jail who wasn’t even from Pennsylvania. He was from Texas, and he had come to Pittsburgh to work. He had a family waiting for him back home, including two young sons. MAN-E asked to buy him a plane ticket, but the man refused. He tried to give MAN-E gas money when they got to the airport, and this time it was MAN-E’s turn to refuse. 

 

Nearly two decades ago, before he was ever a part of Jailbreak PGH or the Bukit Bail Fund, MAN-E came upon a man at a Smithfield Street bus stop — right next to a now-closed infamous McDonald’s location. The man wore a sign around his neck, advertising himself as a hard worker, and was asking passersby for spare change to make bus fare. Usually, MAN-E doesn’t give homeless people money; he prefers to buy them food or something else that they might need. But this was a different situation. He knew this man to be his father. 

MAN-E gave the man all the change he had, not revealing that he had recognized him. His dad had just been released from the Allegheny County Jail that day — “I was at a New Year’s Eve party with some white boys, I heard a racial slur, and I just started swinging,” he told MAN-E. The two laughed about it together, their laughs identical in the way only fathers and sons can be. As their smiles faded, their eyes stayed locked on each other, until MAN-E’s father was struck with the realization.

“Muhammad?” he asked, using MAN-E’s given name.

“Yeah,” his son replied, “it’s me.” 

As he tells me all the details of this story, there’s an unmistakable smile around the edges of his voice — he’s even laughing at times. “That’s one of my funniest stories,” he tells me, and truthfully I laugh with him.

Throughout our conversations, as I later realize, he calls other stories funny too. The story of how the first time he was supposed to be released, the paperwork was lost somehow and he had to stay there an extra day. The story of how his father was once shot by his grandfather, for some reason that MAN-E still doesn’t know. The story of how once, when he was in jail, an incarcerated person asked a corrections officer a question about making a phone call, and she started screaming at him at the top of her lungs — you in jail, you ain’t shit. 

As I play back the recording of our conversations, all of this rings in my ears — the exploitation, the abuse, the trauma, those lyrics: every Black male in my family’s been to jail. I wonder to myself how funny the story of his father would’ve sounded if MAN-E hadn’t been the first to laugh.

 

***

“That’s why people like me care about people coming out of the jail,” MAN-E says. “The current system lacks humanity… They’re not providing the level of care and consideration to these people that we are. When you go to jail, you’re an inmate. They give you a number, a DOC number. That’s how you’re viewed, you’re not viewed as a human. People like us, like these groups, we’re concerned about the humanity of these people.”

Recently, the ACLU of Pennsylvania, the Bukit Bail Fund, Jailbreak PGH, 1Hood, and the Abolitionist Law Center have begun collaborating on a campaign for pretrial freedom. Though ending the use of cash bail is one goal of their work, they also want to work on freeing those incarcerated on probation detainers, a major cause of pretrial detention in the Allegheny County Jail. 

The collaboration is new, and plans — public education campaigns on social media, phone-zapping of magisterial district judges to request that they stop assigning cash bail — have not yet been put into action. Members of the organizations are hopeful that the coalition of different groups will help to develop more attention on an already-growing movement. 

“There is a lot of momentum for [ending cash bail], and I have been surprised by some of these judges here in Allegheny County. I mean, maybe maybe it’s because it’s election time and they know people are paying attention,” he says with a laugh. A slew of Magisterial District and Court of Common Pleas seats, the latter of which deals with probation violations and detainers, are up for election or reelection this May. 

“They have a lot of discretion, which is really a lot of power, the power to discriminate based on their own biases or their own feelings at the time. So we really want to focus on keeping these judges accountable,” says MAN-E. That’s one of the main strategies of the campaign, to remind the judges and the people of Allegheny County: “People have the power to vote these judges out.”

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