Crime

Mass Bail Reform, Not So Massive

This program's success rate so far is upending conventional wisdom that defendants need skin-in-the-game in order to return to court.

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This may sound obvious but it’s worth emphasizing: most people in jail awaiting trial are there because they don’t have the money to make bail.

Bail gets set based on the seriousness of the crime, the person’s criminal history, and the strength of his community ties. These factors are meant to measure the likelihood that the person will come back to court.  The theory is that if the right amount of money is posted, the person would rather come back to court than lose the money.  It makes sense except for two extremes: when the person is so wealthy that losing bail money doesn’t matter, or when the person is so poor that no matter how low the bail, he won’t be able to make it.  It’s the latter of these two scenarios that bail reformists have sought to address.

I’ve seen bail set as low as $150 dollars keep people in jails for months.  Is it fair to keep people in jail just because they’re poor?  And if it’s neither fair nor cost-effective because of the high price of incarceration, how do we guarantee that poor people released without bail, will return?

Recently in New York City, RFK Human Rights started a pilot program bailing out women and teens from Riker’s Island jails.  It was billed as a “mass bail-out,” the biggest of its kind, and set prosecutors and police on edge about what they saw as criminals being set free.

Now, several months following the roll-out, the number of people bailed out is far lower than promised.  It is certainly not a “mass bail-out,” but more like a mini one.

According to a report in the New York Times, only about 105 people awaiting trial have been bailed out of Riker’s Island since September 2018.  Of those bailed, 90 have had return-court dates since they got out and mostly all have returned.

That’s an excellent percentage since, remember, the goal of bail is to ensure that people make their court dates. The reason they come back, in large part, is thanks to the safeguards established by the program to make sure they come back.

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Social workers and other social service experts were at Riker’s connecting them to housing, food stamps, and Medicaid. Two-month unlimited metro cards were distributed along with cell phones so that the “decarcerated” could communicate with their lawyers and receive texts reminding them of upcoming court dates.  Simple steps and effective ones.

The success rate so far is upending conventional wisdom that defendants need skin-in-the-game in order to return to court.

Kudos for what appears to be a great start, but there’s more to do.   The program’s success will rise or fall on the strength of its support system — the connection between the people bailed and social services.

For people without a place to sleep or food for their children, coming to court is a secondary concern.  Similarly, those with mental health problems or drug dependencies, if left untreated and unsupervised, will likely fall off the grid.

I requested assistance from the bail-out program for a female client of mine suffering serious mental illness and charged with attempted arson.  I heard nothing back.  While not a good thing for my client, I’m rationalizing that maybe the program is addressing only as much as they can realistically handle.  Instead of rushing to fulfill the “mass bail-out” promise by hurrying to make bail for thousands, maybe the goal of RFK Human Rights is to make sure the people they do bail get the services they need so they’ll be more likely to return to court.  That’s how they’ll be able to prove the program can work and convince the naysayers.  Slow and steady.

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The paradigm of jailing the poor has been engrained in the criminal justice system for centuries. We don’t have per se pauper’s prisons as in the days of Charles Dickens, but we do have massive communities of poor arrested and jailed on a daily basis.  Over 90 percent of people arrested in New York City are appointed public counsel because they are indigent.

The missing link in any mass bail-out isn’t the good will or even the solicitation of funds, it’s using the money to develop much-needed housing and connecting people with the services (in particular mental health services) they’ll need to make it back to court and not be rearrested.

The RFK “mass bail-out” initiative may not be as massive as promoted.  But if it continues with the returns it’s showed thus far, it may become a model for similar efforts through the country.

Its original goal was to assist in New York City’s prospective shutdown of Riker’s Island — the giant complex of 10 separate prisons off the tip of LaGuardia airport.  That goal is still a long way in the future, but the combination of releasing even a small portion of the women and teens housed there and helping them get back to court on time is a worthy start.

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

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