Bringing Reform to the Criminal Legal System

by Reducing Mass Incarceration

Innovation in Philanthropy Final Project

Team – Downs, Chen, & Lee

May 1, 2019

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Introduction

The United States has over 2.2 million people incarcerated - the most in the world. On any given

day in the U.S., over 60% of the 2.2 million incarcerated are jailed simply because they cannot

afford modest bail, this includes thousands in Connecticut. Bail criminalizes poverty and serves

as the portal to mass incarceration. In the wake of decades-long over-incarceration, there exists a

growing consensus in the U.S. and in Connecticut that meaningful criminal justice reform is

necessary to end mass incarceration. Still, the misuse of jails in the U.S. is often overlooked as a

causal factor in the rise of mass incarceration , despite the fact that there are nearly 12 million

jail admissions each year in the country — nearly 19 times the annual admissions to federal and

state prisons.

In Connecticut, thousands of innocent individuals are incarcerated each year because they cannot

afford bail, placing them at risk of losing their homes, jobs, and custody of children. While

wealthy individuals with financial resources can pay bail and get released from police custody,

those who cannot afford bail face two options: remain in jail to await case disposition, or plead

guilty — often to crimes they did not commit. This two-tiered wealth based system of justice

disproportionately harms communities of color, individuals with chronic illness, LGBT

individuals, immigrants, and low- and no-income individuals.

The individuals harmed by the inequities of pretrial incarceration are overwhelmingly poor and

from communities of color. As of this writing, there are 130 individuals currently incarcerated in

Connecticut due to inability to afford bail amounts of $3,000 and less. We know that most of

these individuals have histories of incarceration; many are trapped in cycles of debt, poverty, and

criminalization that make proper reentry exceedingly difficult. The racial composition of this

group is 57% white, 26% black, and 20% Hispanic. This group is 81% male and 19% female.

And 74% of this population is incarcerated in New Haven Correctional Center, Hartford

Correctional Center, Bridgeport Correctional Center, and York Correctional Institute (for

women). For individuals in Connecticut who cannot afford bond amounts at or below $3,000, the

average time spent in pretrial detention is 54 days. The average bond amount is $1,530. Because

the state spends $137 per inmate per night, the intervention of the Connecticut Bail Fund (CBF)

can save the taxpayers of Connecticut millions of dollars per year not including the resultant

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savings of lower recidivism. Further, through conversation and collaboration with the police, we

can begin to reduce the trauma of incarceration even before the point of arraignment — an

extremely critical period, as evidenced by the fact that 53 people committed suicide in

Connecticut within three days of incarceration last year alone. Further, studies show than even

one night spent in jail becomes a factor increased recidivism.

Compelled by the pressure of pretrial detention, over nine in ten defendants who cannot make

bail will accept a plea bargain and plead guilty, thus forfeiting their constitutional right to trial

and, thus, guaranteeing a criminal record. Existing bail funds in New York have found that bail

fund clients are two times more likely than detained person similarly charged to have their cases

dismissed or resolved favorably - often having charges dropped or reduced to traffic fines. Last

year, one-third of the Brooklyn Community Bail Fund’s 520 clients saw all charges dropped.

Additionally, existing bail funds have extremely high reappearance rates, despite the fact that

clients lack the financial incentive to appear in court. Last year, over 95% of Brooklyn

Community Bail Fund’s 520 clients attended all mandatory court appointments. Similarly, in

2015, among Bronx Freedom Fund’s 300+ clients, over 97% attended all mandatory court

appearances. This is the result of pre-trial support and advocacy.

The Vera Institute published a study which found that 16,000 New Yorkers who could not afford

bail and remained in pretrial incarceration until their trial cost the State of New York $350

million. These individuals in turn lost $28 million in wages, and, in many case, lost the custody

of children, job, and home. Any length of incarceration imposes a criminogenic effect on

individuals and increases the likelihood of recidivism. Thus, unnecessary jailing further

increased the likelihood of re-criminalization and facilitates mass incarceration. Through the

efforts of the CBF and our partners, we can help end the collateral damage of the wealth based

pretrial bail system and help our neighbors, their families, and our communities stay healthy,

productive, safe, and together.

Theory of Change – Creating Impact for Fair and Equal Criminal Justice System

(Figure 1)

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The Connecticut Bail Fund believes that by restoring equality and justice to the wealth based

pretrial bail system, we will provide a model that, if brought to scale, will facilitate the end of

mass incarceration in the United States, saving taxpayers millions of dollars in the process while

restoring public faith in the American justice system.

In theory, bail is simply intended to guarantee court appearances: people accused of crimes post

their bail with the court, then recover the bail money when their cases are disposed. In practice,

bail criminalizes poverty. People who cannot afford bail face two options: spend months in jail

waiting for a trial, or plead guilty — even when innocent. The harms of pretrial incarceration

include loss of employment and housing, trauma, and criminal convictions. This system

particularly targets black and brown families, the homeless, LGBTQ people, and people living

with disabilities and chronic illness. Bail perpetuates a presumption of guilt in over-policed

communities. The Connecticut Bail Fund allows people fighting criminal charges to return home,

keep their jobs, maintain custody of their children, and defend themselves from a place of

freedom.

The success of the Connecticut Bail Fund is contingent upon “buy-in” from the communities

most directly affected by pre-trial incarceration. Thus, organizational involvement of those with

a history of incarceration is critical to this project. Those with a history of incarceration hold a

majority of the seats on the advisory board. Further, the design and launch of the CBF project is

rooted in collaboration and conversation with individuals with a history of incarceration as well

as with staff members of client of reentry services throughout Connecticut, including Transitions

Clinic-New Haven at the Yale School of Medicine, Easter Seals Goodwill Industries, Family

Reentry, Project MORE, Project Fresh Start, EMERGE Connecticut, the ForDD Clinic at the

Yale School of Medicine and Community Action Agency of New Haven.

The Connecticut Bail Fund conducted a series of community meetings in order to discuss the bail

fund with individuals whose communities are most impacted by over-policing and incarceration.

A series of focus groups were also conducted with the residents of Project MORE, the patients of

Transitions Clinic-New Haven and homeless men in the Day Program at Liberty Safe Haven. To

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further integrate the CBF into the community, some of our clients will serve on the board, and,

eventually become paid staff members.

Once we post bail, the Connecticut Bail Fund is geared to address the attendant needs of our

client population. Clients will be paired with Community Navigators who have a history of

incarceration and possess the necessary cultural competencies to assist pre-trial clients. We will

provide transportation fare for court appearances, facilitate medical and social services

appointments with our social service partners, make regular follow-up calls and court date

reminders, and partner with public defenders to stay abreast of clients’ court obligations.

Our clients will be encouraged to become involved in our organization as advisors, advocates,

Community Navigators, and, eventually, staff. We will provide opportunities for clients to share

their stories in the press and at community meetings, place phone calls and write letters to

policymakers, guide our advisory board, and give direct assistance to subsequent clients.

Together we will education, inform, inspire, and reform bail - and help end mass incarceration.

This is a critical step in reforming the current criminal justice system.

By demonstrating that our clients appear in court and experience better case outcomes than

individuals who cannot afford bail, we will challenge the practice of invoking past criminal

history and past failures to appear in court in setting bond amounts. Often, individuals fail to

appear in court due to hospitalization, sickness, lack of transportation money, childcare

responsibilities, or even incarceration in a different judicial district. By identifying and reducing

these obstacles, we will signal the transition towards a culture of pretrial support, rather than

punitive detention and supervision. Not only is such a culture more humane, but it also saves

money for the state.

Our data will show that reduced pretrial detentions improve legal outcomes for clients, decrease

in recidivism, save tax payers’ money, and restore public faith in the criminal justice system. The

Connecticut Bail Fund can use these metrics to inform and educate government and law

enforcement officials as well as elected representatives, and CBF will lobby for governmental

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reform ending the current money based pretrial bail system - which will be a catalytic step in

ending mass incarceration.

Partnerships

CBF works with numerous re-entry organizations which help our clients throughout the

reentry/pretrial process. We are working with the Department of Corrections to receive access to

necessary data and facilities. We are collaborating with the Court Support Services Division,

which includes the Office of the Bail Commissioner, to receive access to de-identified data for

data for our randomized control trial (RCT). We are also in conversations with the Under

Secretary of State and leaders in the Sentencing Commission to influence the development of

policy through our research and advocacy. Lastly, we are in dialogue with the New Haven Police

Department and to develop optimal post-arrest release procedures.

The Connecticut Bail Fund will also function through working in collaboration with other

partners who will help clients with the re-entry process, and advocate for reform through

networking with public defenders, judges, law enforcement, and community service

organizations. It is a system of partnerships that will require collaboration on all fronts. With bail

funding in place, CBF will deliver and enable access to services for the clients and staff who will

work alongside teams of reentry and pre-trial specialists, social service providers in order to

further advocate for reform. CBF will be working alongside a number of re-entry organizations

who can help our clients through the re-entry/ pre-trial process, including: Transitions Clinic-

New Haven at the Yale School of Medicine, Easter Seals Goodwill Industries, Family Reentry,

Project MORE, Project Fresh Start, EMERGE Connecticut, the ForDD Clinic at the Yale School

of Medicine and Community Action Agency of New Haven.

To quantify the impact of our intervention, we will conduct a randomized control trial (RCT)

overseen by partnering faculty in the Yale University Political Science department. This will be

the first-ever RCT measuring the impact of a defendant’s inability to afford bail. We are primed

to generate empirical research on the social cost of the bail system, raise awareness through

media outlets and government partners, and provide a channel through which individuals

impacted by the bail system can make their voices heard.

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Advocacy Actives

In addition to working with our clients after posting bail and engaging them in our pretrial

support services, CBF will partner with The Connecticut Center for Social Innovation - a

nonprofit focused on evidence-based solutions in criminal justice reform, Unidad Latina en

Accion - an immigrant advocacy group, Yale Law School Law Clinic, Connecticut Legal

Services, and the Criminal Justice Project to meet with, educate, and lobby elected officials at

the city, state, and national level to pass bail reform. In conjunction with Yale University's

Political Science department, we will conduct the first-ever RCT measuring the impact of a

defendant’s inability to afford bail. We are primed to generate empirical research on the social

cost of the bail system, raise awareness through media outlets and government partners, and

provide a channel through which individuals impacted by the bail system can make their voices

heard. In addition, we will work closely with the Attorney General of Connecticut's office to

share our findings in an effort to make the Attorney General a partner in bail reform.

Potential Financial Resources

Funders:

Looking to financial sources who are potentially interested in becoming an investor for

reforming the criminal legal system in the United States or who have already supported various

causes and organizations in the past that work with incarceration or jail reform. Other possible

source are entities interested in working at the community level through community engagement

and education on the issue at hand. Connecticut Bail Fund is also looking to foundations who

recognize that bail reform that could be addressed.

Grantmaking

Community Foundation of Greater New Haven: The original funders of Connecticut

Bail Fund and are currently still providing their help to the bail fund. Their focus is set

upon supporting Connecticut communities and the belief that uniting and contributing

help will bring forth a stronger future for the area. They distribute more than $20 million

dollars annually to a wide range of issues that the community faces, from advancing

gender equity to strengthening the arts sector to supporting reentry. CFGNH is dedicated

to advancing the quality of life for the recently incarcerated and their families, hoping to

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provide future opportunities and much needed support instead of creating barriers. It is

about helping these individuals rebuild relationships and have them integrate back into

the community.

Inside Circle Foundation: Inside Circle’s mission is to provide future opportunities for

those who are incarcerated and formerly incarcerated, allowing them to heal and serve

both themselves and others. They are trying to change how the system impacts people

and leading change from within, seeking to reduce recidivism and all forms of violence

including physical, emotional, and psychological, that exist in the country’s prisons and

communities. The primary focus of Inside Circle is on building community connections

such as through screenings, talks, and dialogues that spread their perspectives on social

justice issues. There is also a focus on facilitation training, many facilitators of whom

were in juvenile incarceration and are creating partnerships with youth rehabilitation

programs.

Gimbel Foundation (Bernard F. and Alva B. Gimbel Foundation): The Gimbel

Foundation is a private foundation with wide-reaching philanthropic interests and the

foundation’s grants are to be used for “charitable, scientific or educational purposes.” The

areas of interest that are targeted by the foundation have slowly changed through the

years and is now primarily focused on environment, criminal justice, economic

development, reproductive rights, and civil legal services. The foundation’s criminal

justice area is directed at reducing recidivism rates and increasing public safety, funding

areas such as advocacy for sentencing reforms, ATI, and policies to improve re-entry

outcomes. The Gimbel Foundation also funds services that will be helpful for past

offenders to assimilate back into society, such as skills training, employment, and

education.

MacArthur Foundation: MacArthur Foundation seeks to challenge the United States’

current mindset on jails and how they are being used. The foundation is looking to reduce

over-incarceration rates and believes that over-incarceration and overuse of jails is a

critical problem to solve. They are looking to support alternative solutions that can

increase public safety, establish a fairer legal and justice system, making sure that those

who are actually in jail are only those who pose a high risk to others and the community.

The foundation understands that reducing the number of people in jails is capable of

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saving the state and taxpayers’ money, and the money should go towards enhancing

services such as mental healthcare, workforce development and education.

Social Investors:

Receiving support from interested social and impact investors who recognize that there is a

problem at hand and looking to reform the broken bail system in the country. They will be the

individual social investors who may want to collaborate to serve the goal of establishing greater

economic and racial equality and lessen the injustice within the United States’ criminal legal

system.

John Arnold, Arnold Ventures: Arnold Ventures is based upon billionaire John

Arnold’s decision to award $39 million for bail reform and other justice initiatives.

(Stoller, 2019) Arnold recognized that there is an enormous amount of inequality due to

economic status that determines whether or not an arrested individual is able to pay for

their bail for freedom. It is a system that disproportionately favors the white and

privileged. Arnold Ventures grantmaking will be part of a greater initiative that is aimed

at criminal justice issues in the nation, including pretrial justice reform and mental health

services as replacement for prosecution.

Financial Mechanism

Social Impact Bond (SIB):

As explained above, the cost of pretrial detention is actually greater than the bail. That means it

would be cheaper for the state to simply pay the bail itself. Nevertheless, reform the cash bail

system is difficult to achieve even though a nationwide movement for bail reform is advancing.

Thus, the intervention of community bail funds could save tax payers’ millions of dollars.

However, reliance on donations and charitable funding sources slows down the growth of

community bail funds.

This is where social impact bond and its pay for success model come in. With the nationwide

movement for pretrial reform as well as the current rate of success, community bail funds attract

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more private investors who believe that they can create social good in a more efficient and cost-

effective way than the status quo.

Social Finance, a nonprofit organization, is a good fit as an intermediary. They served as the

intermediary in the Connecticut Family Stability Pay for Success project and criminal justice is

one of their focus areas. Social Financial partners with Connecticut state government,

Connecticut Bail Fund, and impact investors to structure and manage the pay for success project

by designing social impact bond (“Connecticut Family Stability Pay for Success Project”).

Vera Institute of Justice, a nonpartisan, nonprofit center for justice policy, will be an independent

evaluator of the initiative. The Institute served as the independent assessor for the nation’s first

social impact bond to fund the Adolescent Behavioral Learning Experience for youth at Rikers

Island (“Impact Evaluation of the ABLE Program”). With its expertise and practices, Vera will

lead to measure and evaluate the outcomes of the program.

Within a specified time frame, like five to seven years, if the program meets specific

benchmarks, then the government will pay a return with below-market interest to investors

through Social Finance. If the program fails, the government does not require to pay the

investors. Nevertheless, the desired social outcomes, even the investors agree on, will be taken

one small step toward the more significant social impact.

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Creating the Private Freedom Fund:

Creating the Private Freedom Fund, not through government authorities but community

foundations could be another financial mechanism to raise funds. This idea comes from Lars

Trautman’s article, Ending the American Bail Racket Forever. Tarutman (2018) recommended

that the government, like Connecticut Department of Correction, could pool money from private

investors to pay bail for those who are arrested for a misdemeanor but cannot afford bail.

Nevertheless, its implementation is more comfortable to say than to do. Thus, by taking

advantage of the social impact bond establishment, Connecticut Bail Fund initiates to create the

Private Freedom Fund in Community Foundation of Greater New Haven, which is designed

exclusively to support Connecticut Bail Fund. Community Foundation of Greater New Haven

serves as an intermediary in the SIB project to attract venture philanthropists, private investors,

particularly those who have a donor-advised fund, institutional funders listed above.

Furthermore, CBF and Community Foundation of Greater New Haven establish a partnership

with Connecticut state government as an outcome payer. As a service provider, CBF taps into the

Private Freedom Fund when posting bails. In this mechanism, Vera Institute of Justice also leads

the program third-party evaluation to raise accountability and transparency. Instead of paying

when specific benchmarks are met or when the terms are fulfilled, an annual payment is

structured based on the amount of taxpayers’ money saved in given year.

Outcomes Measurement and Metrics

Outcomes measurement and evaluation are critical elements in the SIB project. For the investors,

it closely tied to their financial return. Measurement methods and respective payment structures

engraved in SIB agreements. For the government, the assessment allows to save taxpayers

money and to advance solving the identified social issue. For civil sector organizations, it offers

a clear set of goals to be achieved as well as constructive feedback to continue to improve in

programs and services. To create relevant measurement metrics to agree with the intermediary,

Social Finance, Connecticut Bail Fund comes up the Outcome Sequence Chart (Figure 2).

Output metrics

Number of clients referred to CBF

Number of clients bailed out

Number of clients participated in pretrial support services

Outcomes metrics

Percentage of client retained housing, jobs, and child custody

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Percentage of client appeared in court

Percentage of bail money revolved back to CBF

Percentage of clients with positive legal outcomes (charges dropped or reduced to fine)

Percentage of re-incarceration during pretrial services

Intermediary outcomes metrics

Amount of total jail time prevented

Percentage of mass incarceration reduced within three months

Percentage of recidivism reduced within twelve months

Amount of state/taxpayers money saved within twelve months

Long-term outcomes metrics

Number of clients maintained low-biding (not re-arrest) within two years.

Number of clients maintained self-sufficient (employment) within two years.

Our assumptions are:

1. Clients appear in court at the same rate as individuals who can afford bail.

2. Clients will volunteer to engage with CBF’s pretrial support services.

3. Clients will be as law-biding as individuals who can afford own bail.

4. Clients will experience positive judicial outcomes as a result of CBF’s bail intervention.

5. Start/taxpayers will be saved and social impact investors will receive final returns based

on saving generated by CBF’s intervention.

6. With positive outcomes, communities groups who are interested in making changes in the

cash bail system, as a part of criminal justice system, will make partnerships with CBF to

advocate for an end to money bail.

Potential Issues/Gaps:

Potential Issues with Bail Fund:

Bail funds operate through a revolving process, meaning that money is pooled to pay bail for

those defendants who are unable to pay their bail and who may be in danger of losing jobs or

housing if they are in jail. If their bail is paid, then they are able to remain free until trial and

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when the case is resolved, the bail paid by the organization will revolve back to the Fund and be

reallocated to other defendants who are in need of help.

However, the very real concern with this is that there is no one hundred percent guarantee that

defendants will show up to their trial, thus breaking the circle of funds that is central to how the

bail fund operates. Therefore, the financial return on such an investment is dependent upon

integrity and responsibility of others. If the defendant does now show up, they will also be in

greater trouble than before.

Social Impact Bond Issues:

Uncertainty: There is a lack of precedent in social impact bond’s development and

implementation has been the main challenge for the stakeholders. Deciding on specific

technicalities without previous experience and adopting a learning-by doing approach is a

time-consuming endeavor, which may also entail financial costs (OECD, 2016, p. 16).

There is also currently no data available to serve as a benchmark where results can be

judged.

Interference from private investors: Another risk with social impact bonds comes from

the interference from private investors who may possess their own agendas. Wealthy

investors are able to pick and choose what programs to fund and hold influence over the

implementation of government policy.

Time duration: Social impact bonds take a long time to develop, requiring collaboration

on all sides, and the contract between service providers, funders, and the government can

be both difficult and take a long time to build up, with timeframes often taking one or two

years, leading to higher costs from all sides (Schiller, 2018).

Measurement and impact: Currently, the wider social consequences of social impact

bonds are still unclear. Even though SIB’s hold high support among impact investing

and philanthropists, the effectiveness and long-term consequences of utilizing this

form remain uncertain. This is also a result of its long and complicated contracting

procedures (Schiller, 2018).

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Collaboration of multiple actors: Requires coordination of service providers, outcome

payers, and investors, and due how social impact bonds are outcome-based, it requires

skilled intermediaries who are able to monitor its outcomes (Skoll Foundation).

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Figure 1. Theory of Change

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Figure 2. Outcomes Sequence Chart

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REFERENCES

Brooklyn Community Bail Fun (2016). "Annual Report." Retrieved from

https://BrooklynCommunityBailFund-AnnualReport2015-16.pdf

Connecticut Family Stability Pay for Success Project. (n.d.). Retrieved from

http://socialfinance.org/focus-areas/children-and-families/connecticut-family-stability-

pay-for-success-project/

Digard, Leon and Swavola, Elizabeth (2019), "Justice Denied: The Harmful and Lasting Effects

of Pretrial Detention," Vera Institute of Justice. Retrieved from

https://www.vera.org/publications/for-the-record-justice-denied-pretrial-detention

Galitopoulou, S. and Noya, A. (2016). Understanding Social Impact Bonds. OECD.

Impact Evaluation of the Adolescent Behavioral Learning Experience (ABLE) Program. (n.d.).

Retrieved from https://www.vera.org/publications/rikers-adolescent-behavioral-learning-

experience-evaluation

Murphy, Michael Lee (2017) "Connecticut Bail Fund Sets Sights on Wealth Based

Jailing." Connecticut Magazine. Retrieved from http://www.connecticutmag.com/the-

connecticut-story/connecticut-bail-fund-sets-sights-on-wealth-based-

jailing/article_0456a37c-3a4e-11e7-a2f5-3769049fc4a2.html

Neyfakh, Leion. (2015). "Is Bail Unconstitutional?" Slate.com. Retrieved from

https://slate.com/news-and-politics/2015/06/is-bail-unconstitutional-our-broken-system-

keeps-the-poor-in-jail-and-lets-the-rich-walk-free.html

Petrovic, Phoebe. (2017) "In Connecticut, Bail Fund Helps Free Immigrants From Detention."

WBUR.org. Retrieved from https://www.wbur.org/hereandnow/2017/07/21/connecticut-

immigrant-bail-fund

Schiller, B. (2018). More Governments are Turning to Impact Bonds – But Do They Deliver?.

Fast Company. Retrieved from https://www.fastcompany.com/40526705/more-

governments-are-turning-to-impact-bonds-but-do-they-deliver

Skoll Foundation. (2018). The Good, Bad, and Ugly of Social Impact Bonds. Giving Compass.

Retrieved from https://givingcompass.org/article/lessons-from-mothers2mothers-the-

good-bad-and-ugly-of-social-impact-bonds/

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Stoller, K. (2019). Texas Billionaire John Arnold Gives $39 Million To Reform America’s

Broken Bail System. Forbes. Retrieved from

https://www.forbes.com/sites/kristinstoller/2019/03/19/texas-billionaire-john-arnold-

gives-39-million-to-reform-americas-broken-bail-

system/?utm_source=FBPAGE&utm_medium=social&utm_content=2197994755&utm_

campaign=sprinklrForbesMainFB#342c47d1c13b)

Trautman, L. (2018, October 04). Ending the American Bail Racket Forever. Retrieved from

https://www.rstreet.org/2018/10/04/ending-the-american-bail-racket-forever/

Vera Institute of Justice (2018). "State-of-Justice-Reform." https://www.vera.org/state-of-justice-

reform/2018/the-state-of-bail