Bridging the Opportunity Divide

Each Day, 731,000 People Are in Jail. How Many Are There Simply Because They Can’t Afford to Make Bail?

July 29, 2015
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Each Day, 731,000 People Are in Jail. How Many Are There Simply Because They Can’t Afford to Make Bail?
The entrance to the Rikers Island prison complex in New York City. A new bail reform program will help keep low-level offenders out of jail while they await trial. Spencer Platt/Getty Images
The Big Apple is fixing one of the biggest problems with the criminal justice system.

Kalief Browder spent three years in jail despite never being convicted of a crime.

He was arrested for a stealing a backpack in the Bronx — a crime the then 16-year-old maintained he didn’t commit. His mother was unable to put up the $3,000 bail, so he was locked in solitary confinement on Rikers Island, New York City’s central jail, for roughly two years as he awaited trial. Browder tried to commit suicide several times — once with shredded bed sheets hung from a light fixture — and suffered physical abuse from guards and inmates alike, as detailed in The New Yorker.

In 2013, prosecutors dismissed the charges, and he was released. Last month, Browder committed suicide, sparking a wave outrage against the system that had imprisoned a young man for years only on the basis of an accusation. With its “unfortunately-long history of horrible abuses,” Rikers Island became an “example of failing to save jail for people who are convicted, as opposed to people who have just been accused,” Karin Martin, professor at John Jay College of Criminal Justice, tells NPR. “We’re realizing that we can’t afford, both financially and kind of morally, the horrible impacts of mass incarceration.”

In New York City, the emotional outpouring that resulted from Browder’s premature death recently crystallized into real reform as Mayor Bill de Blasio announced a sweeping, $18 million overhaul of the city’s bail system. Since 2009, the Big Apple had tested alternatives to monetary bail at a jail in Queens, offering “supervised release” through a nonprofit to low-level or nonviolent offenders. The only requirement? That a person had to do was check in regularly. Nearly nine out of 10 defendants — 87 percent — still showed up to court. Similar to programs in Washington, D.C., Chicago, Charlotte and Phoenix and states like Kentucky, Arizona and New Jersey, nonprofits in the Big Apple will be following up with text messages reminders, visits with case managers and other check-ins to ensure that people keep their date with the judge.

“We know that there are thousands of people who are now being held pre-trial in the city’s jails simply because they cannot afford to pay a few hundred dollars in bail. Instead, they are held at great expense in jail and frequently lose their jobs, have to drop out of school and lose daily contact with their children and families,” Michael Jacobson, executive director of the CUNY Institute for State and Local Governance, says in a statement. “Using risk as a standard for pre-trial detention as opposed to how much money someone has will increase public safety, reduce unnecessary and costly detention and make our pre-trial system more fair and just.”

Jails don’t get the same attention as their larger counterparts, state and federal prisons, but the average American is 19 times more likely to be locked up locally than thrown in the slammer. On any given day, 731,000 people are in jail; about 12 million people are admitted in the course of a typical year, according to research by the Vera Institute of Justice. Some are serving out a sentence, but most are simply waiting for their case to be resolved, either through a trial or a plea.

Though the cash bail system is intended to ensure that a person shows up for trial, it’s the most significant reason why some remain locked up and others are released. Put simply, if the accused or his family can’t find the cash for baile fast enough (or at all), he or she will remain behind bars. Most of the time, bail isn’t astronomically expensive. In New York, more than half — 54 percent — of inmates held through the end of their case were behind bars because they couldn’t post bail of $2,500 or less, mostly for misdemeanors.

“There’s no reason to keep people in jail at great costs, when they are no threat to anybody,” says Jonathan Lippman, chief judge of New York State. It “strips our justice system of its credibility and distorts its operation.”

To aid cities and states in determining whether a person is likely to reoffend, the John and Laura Arnold Foundation developed risk assessment tools. Among the key factors that are considered are the person’s age and criminal history, including any prior incarcerations and failures to appear in court, as well as whether the current offense is violent, Anne Milgram, the foundation’s vice president of criminal justice, tells NationSwell. Drug use, employment and other criteria traditionally weighed at arraignment hearings are almost meaningless, she adds.

The judges who used the Arnold Foundation’s criteria have seen notable drops in the jail population and correlated drops in crime. In Charlotte, for example, the number of inmates dropped 20 percent.

“The central challenge of our work has been getting people on board thinking a little differently about how these decisions are made,” says Milgram, a former criminal prosecutor. “There’s a lot of individual discretion for police, prosecutors and courts, but we haven’t used objective data to inform those decisions. We’re not taking away any decision making; we’re providing information that you both need and should want.”

New York will likely develop their own “updated science-driven risk assessment tool” in the near future (Manhattan District Attorney Cyrus Vance called for one), pending an update to state law in Albany.

There’s been some criticism leveled at the latest changes in Gotham by some of bail reform’s biggest promoters. Robin Steinberg, executive director of The Bronx Defenders, a legal aid service, and David Feige, board chair of The Bronx Freedom Fund, which assists those charged with a misdemeanor make bail for $2,000 or less, both called the reforms “long overdue” but stressed that the city must not intrude too far into the lives of defendants. There’s no benefit in being released from jail, they say, if an organization can impose even stricter pretrial requirements, the violation of which could result in reincarceration or other penalties.

“Here’s how it works: A young man arrested for shoplifting might plead guilty and be sentenced to perform one day of community service. But that same defendant who is innocent of the charge might, as a condition of his release, be ordered to attend a one-day drug education program, report to a pretrial-services officer every week, and undergo drug treatment or testing — all because he claimed to be innocent and sought to challenge his arrest,” Steinberg and Feige write in an op-ed for The Marshall Project. “The problem with the pretrial-services model is that these ‘services’ … are often identical to, and sometimes far more onerous than the sentence one would receive for actually being guilty of the crime.”

Natalie Grybauskas, assistant press secretary for the city, tells NationSwell that the only conditions for release will be “whatever check-ins are deemed appropriate by the provider.” Any added services, like a referral to drug education, will be voluntary.

The city expects to select providers from a group of applicants in the fall, she adds.

 

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