Criminally Yours: Let Them Have Cell Phones!

It's time to think creatively about how to get people back to court without jailing them. Jail should be reserved for the truly dangerous and for those convicted of crimes -- not mostly the poor awaiting trial.

Rikers, also known as the “Rock,” is one of the better-known city prisons in the country. It was the birthplace of the New York chapters of many national gangs like the Bloods and the Trinitarios — formed by prisoners to protect themselves and sanctioned by guards to keep peace inside the jail. The guards had so little control, gangs were necessary to set boundaries, negotiate terms, and make sure petty issues like who wanted what TV channel didn’t erupt into murder.

Decades later, the problems at Rikers continue. A guard was recently raped; inmates are often assaulted by both guards and fellow inmates. A man died when put in a cell that was not ventilated — he basically baked to death.

If you’ve read any of the New York media last week, Mayor Bill de Blasio is spearheading an effort to deal with the issue of overcrowding at Rikers caused, in part, because of the slowness of bringing defendants to trial. He blames the courts — prosecutors, defense attorneys, judges, court officers — for the delays and is forming committees to look into ways to speed things up.

But, beware, Mayor, there is no magic pill. With so many problems happening simultaneously, the long trek to trial is just one of the issues and not the most significant.

In my humble opinion, the number one reason for the packed city prisons is the bail system. Because most people arrested are poor (see my earlier columns), even setting bail as low as $250 dollars ensures that poor defendants are stuck in jail for months.

For misdemeanor cases, and this is the majority of the arrests made in New York, this is a waste of money and manpower.

First, the basics. Rikers Island is a “city” jail, not a state prison. That means only people awaiting trial, in other words, people “presumed to be innocent” sit there. (The exception is for defendants sentenced to one year or less in jail, post-plea or trial.)

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Most of the people at Rikers Island are there not because they’ve been found guilty of a crime and are being duly punished, but because they can’t afford the money to bail themselves out. Many are there for minor crimes — recidivist shoplifters, penny-ante drug users, people who jump the turnstile, or carry a knife in their pocket.

Some at Rikers admittedly are there awaiting trial on very serious crimes — murder, armed robbery, rape — and their bails should rightly be high if they have criminal records and the People’s case is strong, but people charged with misdemeanors should not be clogging the jails. This is a misuse of the bail system.

Bail is not supposed to be punitive or preventive detention for the poor. It should be a more reasoned, critical process where prosecutors examine their cases more critically from the get-go, use their discretion to dismiss or reduce trivial cases, and don’t automatically ask for bail, no matter how low.

The state system should adopt more alternatives to posting cash in exchange for a defendant’s freedom. In the federal system, believe it or not, the approach to bail is more enlightened. There are ankle bracelets for home incarceration that permit the defendant to go to work. There are surety bonds so if someone’s family member doesn’t have ready cash but has a job, they can sign a bond, without putting any money down, and get the person out.

State court (and I’m sure it’s not just New York) is mired in the past. It’s only recently that bail could be paid with a credit card, and that an experimental program began to develop a monitoring and reporting system for poor defendants charged with low-level crimes so they can be released from jail but still kept track of.

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The purpose of bail is twofold: to guarantee people accused of crimes come back to court and to keep dangerous people off the street.

But there’s an ethical component to be considered based on the economic realities of who gets arrested. Are wealthier people charged with shoplifting any less dangerous to the public than people with no money? I don’t think so.

Keeping poor people in jail while awaiting trial also coerces them into pleading guilty. Here’s the equation. If a person can plead guilty and get out of jail today, why would he bother to sit in jail for another two months just to invoke his right to go to trial?

Then the snowball effect begins. Pick up a conviction and the next one’s more likely, and the one after that. Even one conviction can prevent you from getting certain jobs, licenses, and certificates. No job + no money = a greater likelihood to commit more crime.

It all adds up to a big deficit for the State. As it stands today, the bail system leads to overcrowded prisons, violence against inmates and prison employees, broken families, and an expense that could be better channeled to change the game rather than perpetuate it.

So here’s my radical idea. For all the misdemeanor inmates awaiting trial, let them out. Since most are put in jail because there’s a likelihood they won’t return to court on their own steam, then use the money it would take to jail, feed, and medicate them at Riker’s Island to find them a homeless shelter or halfway house or let them return to their families, or slap on an ankle bracelet, or just give them a cell phone.

Yes, a cell phone. With the GPS-like devices embedded in them, police could track down the carrier easily and haul him back to court as needed. I agree that ankle bracelets would be more practical in some ways — they can’t be taken off, they’re indestructible, and wouldn’t be sold like cell phones might. But it could be like the Citi-bike program — Citi-cell phones for misdemeanants. Think about it, the defendant would have a connection to the modern world most don’t have now; they could call their attorneys, go online, look for work, and join the world of the living. Yes, this would cost money, but I’m guessing it would be less costly than imprisoning them at Rikers.

Let’s save city prison space for the serious offenders. It’s time to think creatively about how to get people back to court without jailing them. Jail should be reserved for the truly dangerous and for those convicted of crimes — not mostly the poor awaiting trial.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.