The Bailout Initiative: Is It Fair Or Is It Dangerous?

Is putting approximately 500 people charged with crimes back on the street risky? Maybe, but not as risky as prosecutors and police fear. 

Many people are in jail, not because they’ve been convicted of crimes, but because they can’t afford bail.

I’m surprised how many people (even lawyers) believe that whether a person can afford bail is a factor judges consider in determining what bail to set.  It is not.  Most judges know that the majority of defendants before them are indigent, have public counsel appointed, and couldn’t even afford a bail of $100. Those people stay in jail until their case ends, which can take weeks, months, or even years.

Because of our pay-to-leave-jail system, many incarcerated people are not in jail because they’re guilty, but merely because they’re poor.  People with money, just as potentially dangerous or as likely to flee, spend the time leading up to their trial in the comfort of their homes with family and friends, continuing life as they’ve known it.  Poor people, on the other hand, don’t have that privilege.  The price of staying in jail includes losing subsidized housing or a spot in a homeless shelter, being kicked out of a drug treatment program, having children taken away, and forfeiting public benefits.  In short, being arrested can be a fate as bad as being convicted of the crime itself.  In fact, many people plead guilty to crimes they didn’t commit just to get out of jail.  In some states, it’s faster to plead guilty then await trial.

So when the Robert F. Kennedy Human Rights group (with a consortium of other non-profits on their advisory committee) announced last week that they’re spearheading what they call a “Mass Bailout,” my ears perked up.

An initiative to get people out of jail en masse?  It seemed impossible.  But according to the notice sent to defense counsel in New York City, the “Mass Bailout” will pay the bail of women and young people (ages 16 and 17) housed at Rikers, no matter their crime, no matter the bail amount.  This is set to start Sept. 29th and sounds like it will blitzkrieg the system, getting out as many women and youths as possible in “a short amount of time” (expected to be 10 days to two weeks) or until the funding runs out, the notice said.  The long-term goal is to change the way bail is implemented in New York and to spur the city to act faster in closing Riker’s Island for good.  (A stated goal of New York City Mayor DeBlasio’s administration.)

Is putting approximately 500 people charged with crimes back on the street risky?  Maybe, but not as risky as prosecutors and police fear.  Judges set bail in the first placed based on what they think a case is “worth.”  They weigh factors like the accused’s prior criminal history, whether he’s failed to come back to court in the past, his ties to the community, the strength of the prosecutor’s case, and the severity of the charges.  Bail is merely meant to assure the defendant comes back to court, not to act as a way to keep impoverished defendants in jail.

Fair is fair.  If a person (or organization on his behalf) makes bail, he deserves to get out.  Will he have less skin in the game if it’s not his own money?  Maybe, but studies in other states show that helping people make bail does not mean they won’t come back to court.  If provided adequate services (housing, basic needs, and subway fare), people do come back.  Those who fail or forget, risk being indicted for a new crime — bail jumping — which carries a penalty sometimes more severe than the original charge and which must be served consecutive to any other conviction.

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In terms of worrying that the bail plan will flood the streets with “criminals,” let’s remember we are a country that supposedly believes in the presumption of innocence.  All the people who will be bailed deserve this presumption.

For those released on so-called “violent” crimes like assault or robbery, orders of protection will already be in place forbidding them from having any contact (even texting) with the person they are alleged to have attacked.  Should they violate this order, they’ll be back in jail for a new crime, a felony, and most likely will be remanded (no bail set).

New Jersey set an early example in remodeling its approach to bail.  Each case was reviewed individually, and where possible, the person was released without bail but with oversight.  According to reports, the change did not flood the streets with criminals or provoke a crime wave.  Instead, it saved the state money and dropped the number of people in jail awaiting trial by one-third in the first two years of implementation between 2015 and 2017.

Similar efforts to revise approaches to bail have been occurring throughout the nation, mostly by grass-roots organizations too numerous to mention.

Of course, prosecutors are not happy with this initiative.  It robs them of their ability to keep a defendant in jail until his case concludes.  A defendant on the street is always in a better position to win his case.  Once out, besides the obvious benefits of getting a good night’s sleep and coming to court looking and smelling better, an “out” defendant can assist his lawyer find witnesses on his behalf, point out where things happened at the scene of the alleged crime, and build his own profile for the better by finding a job or entering a job program.  This gives him more negotiation room with the prosecutor and also presents a far different picture of him to a jury should he eventually testify at his own trial.  (It’s amazing what not being awakened at 5:00 a.m. then shoved onto a bus with other inmates can do for your ability to take the stand and tell a coherent story.)

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There’s no doubt the “Mass Bailout” is an experiment.  Hopefully, having been given this opportunity to be out on bail, the beneficiaries will use the time to reintegrate with their families, go to school, find work or programs, and return to court as ordered.  It’s a big change but one well worth exploring.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.