Episode 11: The Price of Freedom

When Flo was arrested in 2016, he knew he’d spend some time in Cook County jail. What he didn’t expect was $7,500: that was the amount the judge set for his pretrial release. “$7,500 might as well have been a million dollars to me.” That’s how Flo spent two months in jail even though he was legally innocent.

Half a million Americans are in pretrial detention at any given moment, and more than 60% of them are there because they can’t afford bail. In theory bail is supposed to be one way out of jail. So how did it become a way to trap so many people in, even when they’re still legally presumed innocent?

Learn more about the Pretrial Fairness Act, and support the Coalition to End Money Bond.

Read Episode 11 Full Transcript Below

[AMBIENT: SOUNDS OF JOGGERS, CYCLERS, AND PEOPLE STROLLING ON AN URBAN WALKING TRAIL.]

FLO [IN SITU]: Well, I haven’t been here for a minute. It’s been a minute because I moved out of the neighborhood. It feels good to be back over here again.

Just being able to walk and ride my bike… gives me peace of mind bring a peace of mind.

[AMBIENT: TRAIL SOUNDS CONTINUE UNDER ASHLEY’S NARRATION.]

ASHLEY [VO]: Flo is a man who lives up to his name.

He took our team to his favorite place in Chicago: the 606 walking trail. It’s a greenspace that stretches two and a half miles east to west across the city. He smiles as joggers bounce past and bikes fly by… taking it all in.

FLO [IN SITU]: I put my headphones on, listen to me some good old Marvin Gaye, some Sam Cooke, especially. [sings] I was born by the river.

I love that song.

[MUSIC: A WISTFUL FLUTE TRILLS OVER A TRAP BEAT RECORD SCRATCHES.]

ASHLEY [VO]: These days, the simplest pleasures feel like luxuries.

FLO [IN SITU]: Look, I’ll be 60 next month. Phew! I think that’s a milestone. I’m glad to make it, you know? And a lot of folks say that peace of mind comes with age, but it doesn’t. You can get a peace of mind at a young age. It’s just being at the, at the right place within yourself, you know?

Being able to, to relax, go to work, take a walk, have a nice dinner, have a good conversation. That’s what peace is to me, having a good peace of mind.

Man, the best, I’m gonna tell you, the best walk I took is when I was released. That walk home, man, was magical.

Every breath that, that…. that you breathe, man, it’s, it’s like a new day. Woo hoo!

Peace. It’s, you know, a lot of folks probably take that word for granted. But When you’re locked up, it’s taken away from you.

[MUSIC FADES OUT.]

ASHLEY [VO]: In 2016, Flo walked home after spending two years in prison.

[AMBIENT: SOUNDS OF THE WALKING TRAIL FADE AS WE TRANSITION TO FLO IN STUDIO.]

FLO: My story is, it’s pretty simple. It’s not complicated. You know, I made, you know, some bad choices in my days. Which ultimately, um, got myself caught up and I had to go to jail.

It’s just a rough situation.

ASHLEY [VO]: Out of respect for his reintegration, we won’t be getting into the details of Flo’s arrest or the charges against him. Discrimination against people who were formerly incarcerated – particularly against Black men – can be devastating, and Flo has worked hard to rebuild his life.

And besides, this story is about what happened before his sentence.

The months Flo spent behind bars before being convicted – before he had a trial. Before he even had legal counsel. When he was still presumed innocent.

Flo, like millions of other Americans over the years, was jailed for months without actually being found guilty.

How is this possible? In the “land of the free”, where “innocent until proven guilty” is the keystone of our legal system? The answer to this is bail.

[MUSIC: THEME MUSIC COMES IN, DISCORDANT KEYS OVER A BEAT AND SYNTH TRILLS]

Conventional wisdom says that bail is an accountability mechanism – if you’re arrested, the court sets a dollar amount for your release. You pay it, you go home. And after your trial, you get the money back.

But what if you can’t afford to pay?

You might go through a bail bondsman who fronts you for a fee, but that comes with its own complications. The commercial bail industry is predatory, and even banned in Illinois, where Flo lives. So if that’s not available to you, then you wait. In jail.

Maybe for a few days, maybe a few months. Maybe years.

You wait until you go to trial, or take a plea deal out of desperation, or until your loved ones come up with the money somehow. It doesn’t matter if you have a job or kids to raise or bills to pay – you’re stuck.

Bail is supposed to be one way out of jail. So how did it trap so many people in?

Let’s get into it.

[MUSIC CONTINUES FOR A BEAT AND THEN CONCLUDES.]

ASHLEY [VO]: On an otherwise ordinary day in April, 2016, Flo arrived at his bond hearing after spending a night in the county jail.

FLO: That day wasn’t a  good day because uh, I was doomed from the start.

ASHLEY [VO]: $7,500. That’s how much the judge set for Flo’s release.

FLO: $7, 500 was like a million dollars to me. That was rent. It was groceries. That was, that was food for my grandbabies. That was the gas bill. That was the light bill. Where am I, where am I going to get that type of money?

Hearing that number just pretty much uh, pretty much let me know that I wasn’t going home.

ASHLEY [VO]: The average bail amount is $35,800. That’s more than an annual salary at a minimum wage.

At any given moment, half a million Americans are awaiting trial in jail. About two thirds of them are there simply because they can’t afford bail.

SHARLYN GRACE: Historically, bail is the right to release while a criminal case is pending.

ASHLEY [VO]: That’s Sharlyn Grace, Policy advisor at the Cook County Public Defenders’ Office in Chicago.

SHARLYN GRACE: When we say bail, most people think we’re talking about money bail, but that’s not what it means when we say there’s a right to bail.

[MUSIC: A SAXOPHONE CROONS OVER PLAYFUL KEYS, A DRONING SYNTH, AND TRAP BEAT.]

ASHLEY [VO]:   Bail is  an old practice, much older than this country. The version we know started a thousand years ago in medieval England.

Before there was a legal system, crime was seen as a personal or family matter, which usually led to blood feuds that lasted generations. Some of the earliest courts in medieval England would settle conflicts by facilitating payments between defendants and victims. Eventually they started requiring the accused to provide what were called “sureties” – which basically meant having friends or family members agreeing to pay compensation if the accused fled their punishment.

As long as the accused had surety, they had the right to go free while they awaited trial. This is the foundation of bail in the United States: bail as an action, not a dollar amount.

A quick side note that people often use “bail” and “bond” interchangeably but they’re not the same thing. Bail is the amount of money a judge sets for a defendant’s release. Bond is the amount paid, which can sometimes be a percentage or the full amount.

SHARLYN GRACE: A lot of people do think, and I think it’s understandable that, ‘Oh, well, if I have skin in the game, if I have this money amount that I’ve paid that I get back at the end of the case, then I’m more likely to come to court because I want that money back.’

[MUSIC CONCLUDES.]

But there are a lot of assumptions behind that. And the paying of the money is supposed to be a condition of release, but it means that there’s never any justification for the fact that someone’s in jail if they don’t have that money. The state never has to prove their allegations. The court doesn’t have to make any findings justifying that detention in jail that can last for not just days or weeks, but months and years. And that’s a real perversion of what we tell ourselves and what we’re supposed to have as a sort of foundation of the criminal system, the criminal court system in the United States, where we say everyone is presumed innocent unless proven guilty.

Over time, what we had was mass jailing, mass caging of people who are awaiting trial simply because they didn’t have enough money to pay a bail.

ASHLEY [VO]: Like bail, presumption of innocence is an old concept that is fundamental to American law. In this country, we’re not supposed to be able to jail anyone until they’re convicted, and the right to bail is intended to protect that.

But case law has decided that presumption of innocence matters most during a trial, not so much before it. For example, the 1979 Supreme Court case Bell v Wolfish, said that presumption of innocence was specifically related to how a case could be prosecuted, and therefore couldn’t be applied to pretrial detainment. And we’ve just accepted that jailing someone because they can’t pay bail is justifiable.

 So  how is bail determined? How are these dollar amounts even decided? 

Judges are supposed to take a defendant’s financial resources into account. There have been laws saying so since the 1960s. But in reality, the sheer volume of cases necessitates extremely fast bond hearings. Sharlyn attributes this to decades of over policing and rising arrest rates that make it hard to keep up – let alone get into the specifics of a person’s case and circumstances.

SHARLYN GRACE: You know, a judge that makes 50 bond decisions every day, the disconnect between that normalcy and the enormity of the decision for the person whose liberty is at stake and for their loved ones who show up to court and are there to watch that decision.

There was a study years ago of Cook County’s Central Bound Court that found they were taking an average of 30 seconds for each case.

Less than a minute – all before deciding on a dollar amount that may or may not put someone in jail for an undefined amount of time. It’s a situation that is bound to be influenced by implicit bias, as many legal scholars have noted.

The average length of pretrial detention is 34 days. A lot of life can happen in 34 days, and even a short stint in jail can lead to devastating consequences for employment, childcare, or housing.

ASHLEY [VO]: Our criminal justice system has always had an outsized presence in Black Americans’ lives. Data show that Black Americans, despite being only about 12 percent of the population, are almost four times more likely than white Americans to be under some kind of correctional supervision – be it incarceration or parole. Last year, one study found that Black Americans were seven times more likely than white Americans to be falsely convicted of crimes.

FLO: So you stand in front of the judge for like less than a minute, and they make a decision to continue your case, and then you sit in a county jail, for months and months and months and months, only because you can’t afford to bond out of jail. Hmmph. It’s a money difference.

[emotional] You’re not just locked up, you know, by yourself because your family members… it’s just like they locked up too. Because they, they, they gotta go through all that stuff. And then they gotta send you money that’s really not there. It’s just a rough situation.

ASHLEY [VO]: You’ve heard me say that the incarceration of one person is the incarceration of an entire family. Bail adds another layer to that.

SHARLYN GRACE: It’s rarely accused people themselves who are paying money bonds. It’s their loved ones. And so often it’s mothers, grandmothers, wives, girlfriends, sisters.

And because of the targeting of Black communities by policing, prosecution, incarceration, it’s going to be Black women who bear the disproportionate brunt of paying money bonds.

ASHLEY [VO]: In theory, bail is supposed to be returned after a trial concludes. But only about 39% of bond payments actually made it back to defendants and their families – often just to pay attorney’s fees. The remaining 61% was withheld to pay court fees, fines, or restitution. In 2021, Illinois reported $83 million in bond payments.

In that way, poor communities of color are bankrolling our court systems.

SHARLYN GRACE: All that using money does is ensure that we’re separating people by access to wealth, and in the United States that’s always going to mean separating people by race and ethnicity, by class, obviously, and disadvantaging people who are already disadvantaged in our court system.

[MUSIC: A MUFFLED BEAT FADES IN, THEN MELANCHOLIC KEYS.]

FLO: Everybody should have an opportunity to have a fair share at the justice system. It should not be about folks who have money, and folks who don’t have money.

If you don’t have the money, you still should have an equal playing ground to fight your case and stand in front of the judge and represent yourself in a decent and opportunist way.

ASHLEY [VO]: When we come back, how ending cash bail could transform our legal system.

[MUSIC TRANSITIONS TO MIDROLL. HOPEFUL STRINGS LOOP OVER A OPTIMISTIC BEAT.]

[MIDROLL]

NATE SANDERS: Hey, I’m Nate with Southsiders Organized for Unity and Liberation, also known as SOUL. SOUL is a proud member of the Illinois Network for Pretrial Justice. The network is a coalition of community and policy organizations that share two goals: ending money bail, and reducing the number of people jailed pretrial.

Flo’s story is heartbreaking and unfair, and what’s worse is that it’s all-too common.* Money bail creates a two-tiered system where the wealthy can buy their freedom while everyone else is left to languish in jail.

No one should be jailed because they don’t have access to wealth, and ending money bail is an important step in dismantling mass incarceration.

In 2021, after years of organizing, the Illinois legislature passed the Pretrial Fairness Act, making Illinois the first state to abolish money bail. The law took full effect in September of 2023 and has had a monumental impact in the first few months of implementation.

This is a huge victory for Illinois and for criminal justice reform, but our work is not done yet. Even now, opposition is fighting to rollback the Pretrial Fairness Act and undermine its impact.

To join our movement, go to ‘end money bond dot org’. There you can sign up for our newsletter to stay up to date with the Pretrial Fairness Act and other actions. And if you’re in Illinois, go to ‘pretrial fairness dot org slash act’ to get more information about how to contact your legislators to voice your support.

We couldn’t have done what we did without the thousands of Illinoisans who stood up, so thank you!*

[MIDROLL CONCLUDES]

ASHLEY [VO]: While awaiting trial, Flo was held in the Cook County jail for more than two months.

FLO: That experience was, uh, it wasn’t nice at all. Anytime you’re incarcerated is not nice. But sitting in, particularly Cook County Jail, the conditions was really, really bad.

We had people sleeping on floors, Bumping into each other in small confinement, shoulder to shoulder. Roaches, rats.

You know, when you incarcerated, you miss the stuff that you enjoy doing. You know, jump on your bike, you ride, you walk, go to the movies. Man, there’s so many things, you start thinking about stuff that you have not done.

ASHLEY [VO]: When you can’t afford your bail, you only have a few options. One, you just wait in county jail until your trial, which, remember, can take weeks, months, in some cases years.  

The other option, and maybe the most popular: you take a plea deal.

FLO:  So, I pretty much had it in my head that, I’m gonna be here for a while. I was wrestling with the fact that, you know, I’m finna plea. I’m finna go ahead and cop out, That’s a term they use. Cop out. You know, people walk around. And then, uh, say what you gonna do. You gonna cop out? Yeah, I’m gonna cop out. I’m gonna take this little time. [emotional] Take this little time. Get it over with and come on home, man… Do my time, come on home.

[MUSIC: TRUMPETS CROON IN THE DISTANCE OVER BONGOS, DRUM MACHINE, AND HARP RUNS.]

ASHLEY [VO]: Somewhere between 90 and 95 percent of criminal cases end in plea deals. Sharlyn Grace says that’s no accident.

SHARLYN GRACE: It’s the being in jail part that largely coerces people into plea deals. The offer in front of them is, plead guilty to time considered served today and go home, or you can wait there for several more weeks, or even potentially months, and we might go to trial. Like, of course we can all see how the rational decision becomes to plead guilty so that you can go home that day.

When we incarcerate people awaiting trial, we actually make it more likely that that person will be rearrested in the future, right, because we are destabilizing that person’s lives and the lives of their loved ones.

And that long term, the consequence is a criminal record that legally allows employers and landlords and educational institutions and all sorts of, all sorts of people to discriminate against you and deny you opportunities in the future.

ASHLEY [VO]: Data show that being detained for any amount of time actually increases the probability of conviction – sometimes by as much as 13 percent.

The data also show that pretrial detention actually increases the likelihood of reoffending by as much as 9 percent because again, the chances of losing housing or employment are high… And so are the chances of employment discrimination once you’re out.

[MUX out]

ASHLEY [VO]: Just as he was preparing to enter a plea deal, Flo discovered one more option: The Cook County Community Bond Fund.

FLO: And somebody passed me the number, and I suggested I give them a call and see if I can get some help.

I didn’t know nothing about it. I called my girl and I said, Hey, call this number and see if, uh, if we can get some help. Gave me a little hope.

So I went back to my bunk at the Cook County Jail sweating, crying, and worried about everything like a whole lot of folks do when they’re locked up.

And then, the next thing you know, I had a lawyer’s visit from my wonderful friend, now Sharlyn Grace.

[AMBIENT: UNDER FLO’S VOICE, A DOOR OPENS. SHARLYN ENTERS AND FLO IS DELIGHTED TO SEE HER.]

SHARLYN GRACE [IN STUDIO]: Hi!

FLO: And, uh, and she said, you’re going home.

SHARLYN GRACE [IN STUDIO]: How are you?

FLO [IN STUDIO]: I miss you. I missed you.

SHARLYN GRACE [IN STUDIO]: I miss you. I miss you.

FLO [IN STUDIO]: Look at you.

FLO: She said, you’re going home. And, uh, that was one of the best days of my life.

[MUSIC: A BEAT STARTS, A HOPEFUL WHISTLE IN THE BACKGROUND ACCOMPANIED BY PENSIVE KEYS, STRINGS, AND HORNS.]

Man, I’ll never forget that day. The sun was shining, the weather was good. And then when I walked out and stepped down those stairs… You know, I had to wait for the bus. But that probably was one of the best bus rides I ever had in my life.

It just seemed like, man, it was like a new day. It was like a, like a different world.

ASHLEY [VO]: Sharlyn was one of the founding members of the Community Bond fund.

SHARLYN GRACE: One of the primary lessons of the bond fund for me as someone who helped start and run it for many years, was that it made a profound impact on the life of everyone that we paid bond for and freed and their loved ones. And also, for every person we freed, there were 10 people inside who had asked us for help that we couldn’t help.

When I was involved in the Bond Fund’s work, we raised millions of dollars and we freed hundreds of people and 50, 000 people were booked into the jail every year.

[MUSIC CONCLUDES]

ASHLEY [VO]: The seeds of change were planted, and started taking root. Within a year, the Community Bond Fund started meeting with like minded organizations. The group called themselves the Illinois Network for Pretrial Justice.

First they tried suing the Cook County criminal court.

SHARLYN GRACE: The argument was very simple: It’s arbitrary, it violates due process, and it doesn’t follow state statute or U. S. constitutional principles for me to be in jail solely because I don’t have the money to pay my way out.

ASHLEY [VO]: The lawsuit was dropped, but the attention it brought to the issue helped usher in an important change. In 2017 Cook County released a new general order that was designed to limit the use of money bond, and reduce the number of people in pretrial detention just because they couldn’t afford bail.

As the movement to end money bail gained traction, so did the opposition. The Illinois Sherriff’s Association claimed that bail reform would lead to a spike in crime rates.

Another group, calling themselves the Coalition of Public Safety – or COPS – said in a joint statement that money bail offered quote, “a layer of protection for law abiding citizens.”

[MUSIC: UNEASY SAXOPHONE TRILLS OVER RHYTHMIC KEYS AND DRUM MACHINE.]

ASHLEY [VO]: So, is bail supposed to “protect law-abiding citizens”? Judges will sometimes set bail at punitively high amounts to keep “dangerous offenders” off the streets while they await trial. But there is little evidence that money bail has any correlation to public safety at all. Remember, Cook County is home to Chicago – a city that tough-on-crime types like to point to for its high crime rates. And in 2017 when Cook County courts stopped holding as many defendants who couldn’t pay bail, there was no change in overall crime stats. But in the first six months the financial burden on defendants was reduced by more than $31 million.

Think of all the rent, groceries, school supplies, family vacations, medical bills, pet food... Ordinary life. All those resources and spending power staying in communities that need it most.

[MUSIC CONCLUDES, FADING OUT UNDER VO.]

ASHLEY [VO]: And then in 2020, horrific footage of a police officer murdering George Floyd stopped the world in its tracks. The movement for Black Lives surged, and unprecedented numbers of ordinary citizens started demanding meaningful, sweeping changes.

Sharlyn says it felt like everyone else was finally seeing the ways that the legal system fundamentally disadvantaged poor people of color.

SHARLYN GRACE: We had ongoing momentum from the successes in Cook County, where the number of people in jail decreased significantly and there was no change in the rates at which people came back to court, the rate at which people were arrested for new offenses, particularly any offenses where harm against another person was alleged. So those are positive evidence that we could do this, and that we should do this in Illinois.

ASHLEY [VO]: They saw their moment and seized it, fighting to include their Pretrial Fairness Act into a package of legal system reforms that passed in 2021.

Predictably, the opposition rallied behind tough on crime narratives. Multiple prosecutors and sheriffs sued the state, bringing the matter to the Illinois Supreme Court. They ultimately found the Pretrial Fairness Act to be constitutional.

Two years later, the law finally took full effect in September 2023 – officially making Illinois the first state to eliminate money bail altogether.

SHARLYN GRACE: There still are and there will be calls to repeal the law, roll it back, because that is a position that some people find to be politically advantageous, but so far there is a lot of evidence that the law is working and it feels impossible, at least to me, to imagine going back.

ASHLEY [VO]: Flo was already out by the time the Pretrial Fairness Act was adopted.

FLO: Anytime you have an opportunity to go to court, it’s not, it’s not, it’s not about just having some nice clothes on. You can go to, you can go to court with a t shirt on, but that’s your t shirt. And you presenting yourself the way you want to present yourself. As opposed to coming to court with uh, with jailhouse clothes on.

[MUSIC: JOYFUL STRINGS BURST IN, ACCOMPANIED BY A BEAT.]

So the Fairness Act is a beautiful thing. [emotional] ‘Cause a lot of people don’t have to go through that. They can go home. Take care of their families, and do what they’re supposed to do, and present themselves in a rightful, decent way, and hopefully, you know what I’m saying, things can turn out a little bit better for them.

SHARLYN GRACE: Flo has been so brave and generous in sharing his story. And we have all these statistics, but oftentimes it’s individual stories that help people understand the impact of the old system.

And once Flo got out of the jail, he could have just gone on and many people do and that’s understandable and that’s everyone’s right. But instead of just moving on because he had gotten out, what he did was get involved in a movement to make sure other people didn’t have to go through the same thing that he went through.

FLO: It’s just a beautiful thing to be free. Freedom is a beautiful thing. Phew! Taking my walks, riding my bike through Humboldt Park. Barbecuing, woo hoo.

[FLO’S VOICE FADES OUT INTO MUSIC.]

[CREDITS]

ASHLEY [VO]: Into the Mix is a Ben & Jerry’s Podcast produced by Vox Creative.

This episode was written by lead producer, Bethany Denton.

The Vox Creative team also includes Production Supervisor Taylor Henry, and Production Coordinator Jessica Bae. Martha D. Salley is our supervising producer, and Annu Subramanian is our executive producer.

The team also includes Ariana Jiffo, senior manager of creative services, Design Director Brittany Falussy, and post-production stars Greg Russ and Andrew Hammond.

Kyle Neal engineered this episode. Original music by Israel Tutson.

Special thanks to Matthew McLoughlin and the Illinois Network for Pretrial Justice.

Thanks also to Ekemini Ekpo and Arianne Young for their support.

The Ben & Jerry’s team includes Jay Tandon, Jay Curley, Sanjana Mahesh, Chris Miller, and Palika Makam.

Join us next month for the season finale, and learn about the effort to end a billion dollar industry that relies on forced prison labor.

I’m Ashley C. Ford. Thank you for listening.