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New York Plan Could Ameliorate Our Out-of-Control Bail System

Many low risk individuals remain locked up because they are unable to afford bail.

Each year, about 45,000 defendants languish in New York City jails, held on bail before trial. Some of these individuals do pose a danger to the community, but many low-risk individuals remain locked up because they are unable to afford bail. For these individuals and their families, it is the justice system that poses a danger to the community.

In light of these considerations, Mayor Bill de Blasio is backing a program aimed at securing release for 3,400 of these defendants as they await trial. Pretrial services will supervise these individuals based on an assessment of the risks of the individual missing their court date or reoffending in the interim.

The program is targeted towards nonviolent offenders, for whom the primary concern is flight risk, rather than any danger to the community. And we have extensive data on the profiles of defendants and what kind of flight risk they pose. As Manhattan District Attorney Cyrus Vance put it in a statement cited by BuzzFeed, our “updated science-driven risk assessment tool will help actors in the criminal justice system better understand who can safely be released and supervised in the community while awaiting their day in court.”

How does it do this? It’s surprisingly simple. Non-profit organizations periodically check in with the defendants before their trial, using text messages, phone calls or in-person meetings.

Why is this so important? Because being locked up in jail, even for short periods of time awaiting trial, can have devastating effects. Even worse, sometimes the time awaiting trial is not short at all.

Kalief Browder, a 16-year-old Black American suffered on Rikers Island for three years, because his family could not pay the $3000 bail bond to have him released. His was accused of stealing a backpack, a crime for which he was never convicted. He spent two tortured years in solitary confinement. Eventually, after being released, he killed himself.

According to city officials, the New York plan could reduce the average daily population of Rikers – about 10,000 – by 200.

Even when the results are not as extreme, they can be costly. Staying in jail because you can’t afford bail can mean losing your job – few employers accept “I was arrested” as a legitimate excuse for missing work. But this means that those who are already financially insecure have to face even greater economic burdens.

When individuals can’t pay a bond but need to be released from jail, they often are forced to either plead guilty to the charge, whether or not they are in fact guilty, or employ a for-profit bail bonds service that charges a high fee for putting up the money.

Sometimes people shrug off these types of concerns, because many assume that if you’re in jail, you’ve probably done something very bad. But as John Oliver pointed out when he discussed our bail system on “Last Week Tonight, “some people end up unable to pay the bail on even relatively minor offenses, like driving on a suspended license:

Of course, many people, like Browder, stay in jail because they’re unable to make bail, but never end up convicted of any crime. They may not have committed a crime at all, let alone a serious one, but face very serious consequences.

But even when people do something wrong, excessively punitive policy will not get them back on the right track. Since crime is highly associated with poverty, a justice system that disproportionately harms the economically disadvantaged is not only unjust, but self-defeating.

The New York Post, unsurprisingly, has decried the New York City plan to decrease its reliance on bail bonds. They cited anonymous police sources who are apparently worried that the plan will increase violent crime and possibly murder, despite the fact that it’s targeted at nonviolent defendants.

These worries neglect the serious nature of forcing presumed innocent individuals to sit in jail for extended periods of time. This kind of treatment needs a powerful justification, and the fear-mongering that a few of these individuals might go on to commit additional crimes is hardly persuasive.

Most other wealthy countries have banned our system of bail, in particular our reliance on for-profit bail bondsmen, and so have several states. Of course, the bail bonds industry often fights moves to change the system.

Nancy Fishman, project director at the Vera Institute, a criminal justice research organization, told the New York Times that Washington DC, which has nearly eliminated bail bonds, has close to 90 percent of defendants showing up for their court dates. Similar trial programs in Queens and Manhattan have had similar success rates.

In his statement on the issue, de Blasio said, “Money bail is a problem because, as the system currently operates in New York, some people are being detained based on the size of their bank account, not the risk they pose.”

“This is unacceptable,” he continues. “If people can be safely supervised in the community, they should be allowed to remain there regardless of their ability to pay.”

Hopefully, the program will prove a success and help to end the practice of jailing people for not being rich enough.

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