This nonprofit wants to bail out as many people as possible in Indianapolis

All Kathleen Merchant could do was sit in her Marion County jail cell and wait.

An altercation with a friend landed Merchant behind bars in May. A few hundred dollars stood between her and her freedom. But it was money Merchant, who was unemployed and homeless, didn’t have.

“I did not have $500 and I did not know anyone that had $500,” Merchant said.

Merchant’s public defender had an option for her, but it didn’t seem completely real: a relatively new nonprofit, not far from the City-County Building, would post her bond, asking virtually nothing in return except that she attend court as required. Now, Merchant has a home, a job and perhaps most importantly, a dismissed case.

What happened in the months that followed her arrest is an example of how the Bail Project, a national organization that posts bond for accused offenders who otherwise wouldn’t be able to afford it, seeks to be effective in Indianapolis and more than another dozen communities where it operates. 

A revolving bail fund that relies on bail money being returned when people make their court appearances, the project is a small step toward bail reform in a county already heading in that direction. Its broader goal, though, is upending a system that the nonprofit says punishes people for being poor.

“When we’re bailing somebody out, we’re giving equal opportunity to somebody that does not have money,” Devi Davis, a “bail disruptor” or bail advocate in Indianapolis, told IndyStar. For bail advocates, there are two groups: those who can afford to pay bond in cases against them, and those who can’t. The latter is who the Bail Project says it wants to help.

But its steadfast belief that the accused are innocent until proven guilty, along with its ambitious mission, has opened the nonprofit up to scrutiny in the few years it's been in existence. And it's modest presence — many of the sites have teams of just two to three workers — to some degree limits who and how many people can receive its service. Nonetheless, advocates say they want to make an impact in Marion County, one incarcerated individual at a time.

“One of the things we’re responsible for,” Davis said, “is to go and make that playing field even.” 

What the Bail Project does

The Bail Project began as a local New York City community bail fund that launched in 2007. It didn’t officially become the Bail Project until 2017, and launched its first site as a national operation in January 2018. The project has set up shop all over the U.S., including the nearby cities of Louisville and St. Louis.

It arrived in Indianapolis with an initial pilot that launched in December, bailing out a couple of individuals, according to Ann Sutton, chief counsel of the Marion County Public Defender Agency. It got off the ground at the start of this year, and has bailed out 275 people since January, as of Sept. 23. The Bail Project says its clients have returned to 95% of their court appearances. 

The process typically works like this: A public defender will usually refer a client to the organization if he/she believes the person may qualify. A Bail Project advocate will then interview the person at the jail and use that information to determine if the person can be bailed out. The questions touch on relevant aspects of the person’s release, such as if they have support from family or friends (and someone who can vouch for them), if they have reliable transportation and if they’re willing to return to court.

The nonprofit receives donations, and relies on money eventually being refunded back to the Bail Project to be used again.

On June 5, Merchant was released from jail after Davis and her fellow bail advocate, April Angermeier, posted Merchant’s bond. 

But Merchant still faced a dilemma. She didn’t have a permanent place to stay or a full-time job. Fulfilling both those needs wasn’t easy.

“I was out on the streets for a bit,” Merchant said. She looked for shelters, but said they were either full or had conditions that conflicted with her prospective jobs, such as a curfew. She eventually got into a shelter. But Merchant says her length of stay was limited, and time was running out.

Then, Davis reached out to Merchant with another opportunity. A nonprofit called Project Lia, which trains former female inmates to reuse discarded materials by turning them into furniture, was getting off the ground and hiring workers. Merchant started working there in early July. Later that month, she moved in with a friend.

For Davis, connecting Merchant to a job is an integral part of her position. She and other Bail Project advocates say paying bail is part of a process that involves continually checking in and staying in contact with clients, who often have complex needs — from unemployment to substance abuse — that must be addressed. It’s an effort to prevent clients from ending up back in the system.

“The last thing we want to do is just bail people out and say ‘fingers crossed, hope you come back’,” David Gaspar, a former advocate and operations manager at the Bail Project, told IndyStar. “That’s unfair to them. It’s unfair to the entire process. So what we’re looking to do is connect them to the resources that we have available to us, to ensure that they’re going to be successful.”

That’s where the project’s partners, like Lia, come in.

The organization started around 2017 and is named after an Argentinian community devoted to social enterprise, according to founder Elizabeth Wallin. Wallin told IndyStar the group tries to “be creative with the resources we have available and use that to provide employment opportunities to women coming out (of prison).”

“It’s innovative,” Merchant said. “I’ve been sewing aprons and potholders. We’ve been redoing the windows in this building (the Circle City Industrial Complex). We do wood-working. But aside from the work and a paycheck, they’ve helped me get a bicycle, so I have transportation. And Elizabeth has been very flexible.”

Flexibility, Merchant said, can be hard to find when one is hamstrung by rapidly-changing, time-consuming court obligations.

“I had court to go to, drug testing to go to, probation to go to, community corrections to go to,” Merchant said. “And anytime I go to one of those things (minus drug testing), you can count on missing at least 4 hours of work.”

Bail Project advocates will often remind their clients of upcoming court dates, they told IndyStar. That support is crucial to the Bail Project’s effectiveness and must be doled out with care.

“When you’re dealing with human beings, you don’t want to be cold,” Gaspar said. “We’ll try to acknowledge them as a human being first, before we roll into our responsibilities of ensuring that we can help them get where they need to be. That’s kind of what’s missing in the puzzle is they become a number. They become a statistic. They become a responsibility, instead of being the human being that they’ve been the whole time.”

The presumption of innocence

Not everyone can receive help. People with active warrants, or revoked bonds are not eligible for assistance, advocates said. Others with bonds exceeding $5,000, the project's "soft cap," also likely would not qualify. The organization also doesn't do surety bonds, which is when 10 percent of the full bond amount is paid.

The nonprofit's CEO, Robin Steinberg, told IndyStar the organization tends to focus more on cases with low-level bail amounts in order to reach more people. The nonprofit, Steinberg said, does not exclude someone because of the charge against them. 

But the group's aim to bail as many people out has raised questions about how that objective can impact public safety, especially after a deadly result to one of its bailouts in St. Louis made national news and drew unfavorable criticism to the nonprofit.

The St. Louis Post-Dispatch reported that in April, Samuel Scott was in jail on charges he assaulted his wife when the Bail Project posted his $5,000 bail. Hours later, his wife was found with severe head trauma and was later pronounced dead, the newspaper said.

St. Louis Circuit Attorney Kimberly M. Gardner told the newspaper that the Bail Project should "consider victims" as well as suspects.

But Bail Project advocates stressed to IndyStar that it’s the judge who decides whether to set bail.

"The determination of threat, the determination of ‘if this person might cause harm to society’ is determined by the criminal system," Gaspar said. "That judgment has already been made by the court."

Steinberg went back to the longheld legal principle in the U.S. criminal justice system.

"We believe very deeply as Americans in the presumption of innocence. Our entire criminal legal system is built on that notion," Steinberg said. "And so when you're looking at somebody, at the bail stage, before they've been convicted of anything, you have to be mindful of the fact that people are presumed innocent, and that that presumption applies to everybody, regardless of race, or class, or charge, or neighborhood."

One of the main concerns of Bail Project advocates is the effect of jailtime on a person who has not been found guilty of a crime. Even just a few days in jail, advocates told IndyStar, can drastically alter a person’s life.

“They can lose their housing. They can lose their jobs. They can lose their family. They can lose custody of their children," Davis said. "Just one day can be so impactful.” 

Merchant’s case was eventually dismissed, court records show. She told IndyStar she likely would have taken a plea deal if she’d remained in jail and one had been offered to her. Advocates say that’s another effect of people, particularly those who have a lot to lose, having to stay behind bars.

"I think that’s just the human condition," Sutton said. "If I’m offered (a chance to) get out, I’m only thinking of that moment, ‘I’ve got to get out, I’ve got things I’ve got to take care of’," she said. "And the concern (of) ‘how is this conviction going to impact me later on’ isn’t as pressing."

Merchant told IndyStar she's "grateful" that the nonprofit took her on as a client.

"I feel humbled because a group of people that did not know me from anybody felt that i was worth taking a chance on," she said. "It could have gone either way. They don't know me. But they took a chance and it did pan out."

The future of bail

The project wants to continue to relieve that pressure for as long it's needed. Advocates say they eventually want to work themselves out of a job, but that doesn’t seem to be happening anytime soon — even with the upcoming changes to the court system in Indiana.

Starting next year, Marion County and the state's other 91 counties in converting to a pre-trial risk assessment program to determine whether a person charged with a crime should be released from jail or if the person is too much of a risk to be let out.

The pre-trial risk assessment tool backs away from bail amounts that keep low-risk suspects behind bars. But for Steinberg, the Bail Project’s CEO, the tool isn’t foolproof, and won’t negate the project’s purpose for being in Marion County and other communities.

“If a jurisdiction were to move from a system where they use cash bail to a system where everybody gets released, we will be the first people delighted to close our doors, turn out the lights and move to another site where reform has not taken place,” Steinberg said.

Risk assessment tools, Steinberg said, rely on algorithms used to predict human behavior. She notes that some academics have said the algorithms are flawed. She also noted that judicial discretion still applies. At a recent pre-trial conference in Indianapolis, Indiana county leaders said that pre-trial risk assessment results are recommendations for judges, not mandates.

“I think the Bail Project’s goal," Steinberg said, "is to try to re-imagine a pre-trial justice system that is really grounded in a presumption of relief and does not use algorithms for that.” 

Steinberg said determining whether a person, who has not been convicted of a crime, should be taken out of their community, family, job, etc. should be a “heavy burden” for the government (a prosecutor) to bear.

“I think we need to be really careful when we think about what comes after cash bail,” Steinberg said, “and not just run to the easiest thing there is to do. It’s going to take more thoughtfulness. It’s going to take deeper thinking.”

Steinberg believes the Bail Project’s model — community release with voluntary support— is one that works. Still, she’s not pushing for it to be the only way forward.

“What’s important to remember is that the solutions (to cash bail) will have to be very much grounded in the communities the clients come from, and addressing the underlying issues of what the resources are that people need to be successful and thrive.”

Contact IndyStar reporter Crystal Hill at 317-444-6094 or cnhill@gannett.com. Follow her on Twitter: @crysnhill.