The first bail fund in the Philly suburbs raised $100K. But that was the easy part.

One afternoon in early January, Heather Lewis sat in her car outside Montgomery County Correctional Facility counting crisp $50 bills into an envelope — $500 altogether, which may (or may not) some day be refunded.

For now, it was the price of freedom for a woman Lewis had never met, who’d been jailed for close to a week on $5,000 bail with charges of driving under the influence.

Lewis is the force behind the Reuniting Families Bail Fund. It’s the first community bail fund to serve Philadelphia’s suburbs, rooted in research that even a brief jail stay increases the likelihood of a conviction, a longer sentence, unemployment, and even future criminal activity. It began organizing in November 2019, raised $100,000, and posted its first bail in June 2020. But it’s been slow going, Lewis said, because she’s hit barriers at every turn.

“We’re in hostile territory,” she said.

Lewis has struggled to access detailed information she needs to post bail, including whether a given defendant is even eligible to be bailed out. (Those who also have probation detainers may remain jailed for months without bail.) And, she faces barriers not seen in Philadelphia, where two bail funds have started in the last few years — and have dramatically stepped up their work during the pandemic to post more than $5 million in bail for 750 defendants in 2020.

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For one thing, unlike Philadelphia’s funds, Reuniting Families is required to act as a surety under local rules. That means the fund can post just 10% of assigned cash bail — but if the defendant is rearrested or misses court, it’s the bail fund, not the defendant, that owes the entire bail amount. For another, Lewis said, jail officials have refused to grant access to interview potential clients to make sure they have someplace to go if she posts bail.

Court leaders, county commissioners, and jail officials all referred questions to a county spokesperson, who said in an email that “the Montgomery County Administration and Courts strongly supports any efforts to reduce the number of people being held in jail because they are unable to post bail.”

The spokesperson said the county “is committed to working with the bail fund,” and noted a 40% decrease in the jail population since the start of the pandemic, to just under 800 people.

Currently, Reuniting Families’ guidelines are to cover bails of up to $5,000, for nonviolent offenses. In a review of the dockets the week of Jan. 11, Lewis said she found nine more people who would qualify.

Before venturing in to bail out her sixth and seventh clients, selected based on such a review and little else, Lewis took a breath.

“I’m going to try leaving my business card this time. I’ve never asked if I’m at least allowed to leave my card for the folks we’re bailing out,” she said before heading into the lobby. “I had fliers, and they were like, ‘You need to take that back.’” (This time, an amiable staffer did let Lewis leave a business card.)

The topic of bail reform has been a lightning rod in Montgomery County, where two top officials in the public defenders’ office were fired last year after filing a brief criticizing bail practices there. The brief described a “multitude of individual and community harms caused by dysfunctional bail practices that result in unnecessary and prolonged pretrial detention.” Those practices, it said, included cursory hearings at which defendants rarely had lawyers, and were often burdened with high cash bail without regard for their ability to pay.

In July 2020, Montgomery County announced the creation of a pretrial service unit that could provide information to magistrates setting bail, as well as various forms of supervision and court date reminders. The county spokesperson said funding has been budgeted for 10 positions to support the unit, however, as of this month, the unit is “not up and running yet.”

Keisha Hudson, former deputy chief defender for the Montgomery County and now the managing director of The Appeal, an advocacy organization backing systemic reforms, warned that the pretrial program as currently planned does not go far enough.

“I don’t think you can have true pretrial reform until you have representation for people who are arrested and charged at that first proceeding where bail is set,” she said. She said lawyers were not notified of the initial hearing, and it usually took weeks to get a bail-reduction hearing scheduled. “The impact once you’re sitting in jail and you cannot afford to get out, that drives other statistics, particularly the high plea rate. You see a lot of people pleading guilty so they can get out of jail.”

Neither of the county’s current co-chief defenders responded to an inquiry.

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On the other hand, those who are free to fight their cases often see better outcomes, said Lewis, who came into the criminal justice realm as a social worker. She would like to be able to connect those she bails out with Montgomery County’s participatory defense hub, which she also coordinates. The hub was the first of its kind in the region, created to help defendants to advocate for themselves.

One hub member, who asked not to be named for fear of retaliation, said she was jailed for weeks during the pandemic on $500,000 bail after going unrepresented at a bail hearing. (Her lawyer was told the wrong hearing time, she said.) The mother of four finally got some of the charges tossed out and got bail reduced — only to be rearrested when a prosecutor refiled charges. The second time, though, “I was working with participatory defense and I knew not to just sit there and not say anything again, or they would put me back in jail,” she said. She told the judge about herself and her family, and was released on her own recognizance.

It’s not unusual for bail funds to run up against official opposition. One of the first modern bail funds, the Bronx Freedom Fund, was shut down by a court order until legislators cleared the way for it to resume operations in 2012. There are now some 80 bail funds around the country, and at least five in Pennsylvania. But that tension with the system remains part of the plan: The Brooklyn Community Bail Fund, which was once the nation’s largest, ceased operation in 2019 after organizers came to feel it was “propping up” the system rather than reforming it.

In Philadelphia, the system has made some allowances for the bail funds, organizers said, including permitting them to enter the jail to meet with clients and to use the county’s bail-assignment system to recoup refunded bail directly from the court. In 2018, the court also abolished its controversial policy of retaining a 30% cut of all bail.

According to Malik Neal, of the Philadelphia Bail Fund, about 93% of defendants who are bailed out appear for court. Bail fund activists have also put in efforts to make sure those bailed out will be successful, including “jail support” to greet those coming out of jail with rides, supermarket gift cards, social-service referrals, and other resources.

But there has also been opposition, even as the bail funds have been instrumental in keeping the jail population below pre-pandemic levels.

District Attorney Larry Krasner has criticized the bail funds for securing the release of people who later committed crimes or became victims. In some cases, said Candace McKinley, who heads the Philadelphia Community Bail Fund, they have bailed people out only to find they are rearrested and their bail is raised. Then, the fund bails them out all over again.

“There has not been an accommodation of the work we do. But we expect that because we’re abolitionists, we’re not reformists. We’re not here to make the system better or kinder,” McKinley said. “We want to shrink the system of mass incarceration down enough that we can one day end mass incarceration and build systems that better serve our communities.”