New York Amsterdam Barrell ofthe Gun - The Price of Freedom

24 October 19, 2023 - October 25, 2023

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BEYOND THE OF THE

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HOW BAIL BECAME A WAY TO JAIL THE POOR

By DAMASO REYES Blacklight Investigative Editor

Sitting like a sentinel at the throat of the East River, Rikers Island has had many lives since it was first purchased by Dutch immigrant Abraham Rycken in the 1600s. After New York City bought the island, which was then less than 90 acres, it served as training grounds for the 9th New York Infantry during the Civil War and later became a dumping ground for the city’s ashes and garbage.

Only in the 1930s did it start the transformation to become the jail that today houses more than 5,000 people, 90% of whom are being held in pre-trial detention, meaning that they have not been convicted of any crime and are awaiting trial.

Nearly 20% of those held at Rikers have been there between six months and one year; 14% have been held one to two years, and 8% (or nearly 500 people), have been detained at Rikers for more than two years.

But who gets held at Rikers and other jails around the country and why? For many less serious charges for alleged crimes, which the system classifies as misdemeanors, it comes down to cold, hard cash—or the lack of it.

In the U.S., when someone is charged with a crime, judges often have the power to set them free while they await trial or have them held if they fear they will not return to court. But for centuries a third option has existed: bail.

Instead of simply promising to come back to court, the accused, or someone on their behalf, can put up money as a way to incentivize their return. If the accused fails to appear, the money may be forfeited.

So, if the accused is wealthy, or can find someone to post bail, the ac-

cused goes free. But if you don’t have the money to bail yourself out, you can be held until you have been convicted or found innocent—a process that can take years in some cases.

And the fact that those with means go free and those without are held in jail has prompted activists and advocates to push for bail reform for years.

“People have been advocating for reform for two reasons. One, it feels unfair when [there’s] someone who can pay their bail and another person can't. It's unfair that there's a wealth-based component to it,” said Jullian Harris-Calvin of the Vera Institute of Justice, a nonprofit that advocates for changes to the carceral system.

Harris-Calvin said that she and her colleagues “saw that the racial disparities that existed in our pretrial justice system when it comes to pretrial incarceration were dramatic.” According to a report from the Center for Justice Innovation, in 2019 “in violent felony cases, judges set bail or remand for 66% of Black, 64% of Hispanic/Latinx, and 55% of white defendants.”

In 2019, after years of struggle, bail reform was passed in New York State, but in the lead up to the bill’s passage, and immediately afterward, bail reform was blamed for the increasing amount of crime in some categories.

In January 2019 the AmNews reported: “They did not ask a single judge, a single district attorney, a single police chief in the state to comment on this most significant criminal justice reform in the history of New York,” said former NYPD Commissioner Bill Bratton on “The Cats Roundtable” radio show with

John Catsimatidis on AM 970 this Sunday. “And now we are left to pick up the debris that it’s going to create.” Bratton called the new bail reform law a “disgrace” and asked, “What the hell were they thinking about in Albany when they crafted this mind-boggling set of limitations on the criminal justice system?”

The mayor said that he and the City Council should take a look at revisions to the legislation. After a meeting with members of the city’s Jewish community regarding recent anti-Semitic hate crimes, de Blasio agreed that changes should be made.

“They did some very good reforms, but there’s also things that need to be done, particularly empowering judges to determine if someone poses a threat to the surrounding community and giving judges the power to act on that,” said de Blasio to reporters.

Several years later, the data, which we will explore in detail in part three of our series, show that far from increasing crime, those who remain free through bail reform are actually less likely to be arrested again than those who remained in jail.

But how did America even get to a system that rewards the affluent and punishes the poor? The roots of bail are older than the American legal system itself.

Illustration by Thais Silva

barons, and other rich folk through various improper means,” said Jed Rakoff, a sitting U.S. district judge in the Southern District of New York, in an interview with the AmNews. Rakoff, a legal scholar, is also the author of “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System.”

More thoughtful professor than stern federal jurist, Rakoff said that the tradition of English kings ripping off the nobility led to the creation of the Magna Carta, which for the first time set forth actual laws even bound to by royalty, and upon which our own legal tradition rests.

“But the Kings didn't give up,” he continued. “They tried other ways Cash Rules Everything to get money and one way was by Around Thee having barons and others arrestThe history of cash bail “like a ed, and then setting a very, very great deal in our Constitution, goes high bail, an excessive amount back to English history. And there of money, which they could then was a long history of English kings, forfeit to the crown under certain in effect, extorting money from circumstances.”

So, bail began as a form of coercion by the state, and many advocates argue that it still is. By the time the American Revolution was building up steam, the British crown had perfected bail as a form of punishment.

“In the years just before the American Revolution, there was a practice of locking up people who were revolutionaries by setting excessive bail,” Rakoff said. The crown would set excessive bail “even if the underlying charges were ultimately dropped ... In the meantime, the poor guy would be stuck in jail because he couldn't afford the bail. Or if he could afford the bail, it was because he was a rich guy, and then the king would take that money.”

The inclusion of bail in the Bill of Rights is a clear reaction to the perceived mistreatment by the crown.

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

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F R E E D O M here,” she said, describing the mentality of someone held in Rikers. “It plays into bail in the sense that you incarcerate somebody, and they’re in shock and after weeks or months, [they say] ‘OK, you want me to plead guilty, I’ll say I did it. I’ll plead guilty.

I’m not guilty, but I gotta move on.’

And they plead guilty. Just to get out of pretrial detention.”

Scheindlin added, “From what I understand, being thrown into Rikers, if you're 18 years old, is a hellhole and [there’s] a great risk of being beaten up by other prisoners [or] being beaten up by guards. There’s a lot of abuse there. So, of course, you’re gonna do anything, anything to stop that, including pleading guilty when you're innocent.”

This is something that defense attorneys say prosecutors are well aware of when they ask for bail.

“Pretrial detention is supposed to be a method where someone may not come back to court to keep them in custody of the government.

It doesn’t have to be a place where people are tortured and people are raped, people are stabbed and people are murdered,” said Brooklyn-based defense attorney Masai Lord. “And, so, if someone says, ‘Well, I don’t want to be sexually assaulted, so I’m going to plead guilty.’

How am I supposed to say, ‘No’?”

He went on to add, “The best way to get people to plead guilty is to put them in a place like Rikers Island.

And I think everyone involved understands that.”

Out of Tragedy Comes Reform But like so much in the Constitution, the understanding of “excessive” has both changed over time and, from the perspective of those advocating for bail reform, seemingly been ignored by the courts altogether.

Staying Put and Pleading Guilty

“The excessive bail clause has not received clear interpretation by the U.S. Supreme Court,” said Duke University law professor and legal scholar Brandon L. Garrett in an interview.

“And in practice bonds that people cannot afford [are] routinely used as a tool for detaining people. And so the entire goal of setting bonds in many situations is to set an unaffordable bond, precisely to detain a person,” he added.

Prosecutors, like every other member of our legal system, are sworn to uphold justice, not simply seek convictions. But if prosecutors

were truly interested in justice, advocates say, they wouldn’t use unaffordable bail to influence the outcome of a case.

“When you're held pretrial, you are more likely to actually plead guilty because of the inherent coercive effect of incarceration [and] you are more likely to have a higher sentence,” said the Vera Institute’s Harris-Calvin.

“Also, there are other consequences, such as loss of employment, loss of education, loss of custody of your children, [and] loss of housing, which are all things that folks who are poorer Americans are more susceptible to anyway—but particularly once you are incarcerated pretrial.”

When someone has been locked up for days, weeks or months, the need to escape the horrific conditions in a place like Rikers can trump the desire to go to trial to prove the person’s innocence.

“Someone gets arrested. They

can’t make bail. They’re in jail for a week or two, or maybe a couple of months or even longer. A prosecutor comes along and says, ‘Look, if you’ll just plead guilty we’ll take the conviction, and you can get out today.’

Every criminal defense attorney I’ve talked to says that every single client I’ve ever represented takes that deal whether they’re guilty or innocent,” Cato Institute senior vice president for legal studies Clark Neily told the AmNews.

“We don't know what percentage of people who have been induced to plead guilty were in fact innocent. We know it’s greater than zero,” he added.

Retired U.S. District Court Judge Shira Scheindlin presided over the trial that determined the unconstitutionality of NYPD’s stop and frisk policy, and spoke about why an innocent person held in jail would plead guilty to a crime the person did not commit.

“Whatever it takes, I want out of

It was against this backdrop that advocates of bail reform toiled for years. In 2019, reform began to move forward in Albany, four years after the death of Kalief Brower. He committed suicide after he was held at Rikers for more three years, much of the time in solitary confinement, because his family could not pay the $3,000 bail required, though he was eventually released after the charges against him were dropped. After the publicity around his death, the city banned solitary confinement for those under 21, and in 2019 reached a $3.3 million settlement with his family.

“I think his story really helped people who aren’t already attuned to this see exactly how oppressive and harmful our pretrial justice system is, particularly when it comes to bail. And so having that story and people empathizing with that, and then marrying that with the data that supports the need to reform bail helped get this movement kind of over the line, and get

our bail reform passed in 2019,” said Harris-Calvin.

Not without controversy, the reforms faced an uphill struggle in Albany but finally passed in April 2019. The reforms were in many ways a revolution in the cash bail system in New York.

“Almost all misdemeanors became ineligible for bail, meaning the judge could not hold that person pretrial. The judge could give that person what is called conditions of release, so they might have to report to a pretrial services officer, have to do drug treatment, mental health screening and treatment curfew, electronic monitoring,” and other conditions, Harris-Calvin said.

Bail reform also included provisions that encouraged judges to set conditions other than bail to ensure that the accused is getting the needed services that will help ensure that the person returns to court.

The reforms coincided with the COVID pandemic, which had a dramatic impact in lowering the numbers of those held in New York’s jails.

An early report from the Center for Justice Innovation examining the impact of bail reform said that in 2020 “ resulting from new restrictions on the use of bail and pretrial detention, judges ordered bail or remand significantly less often for all racial/ethnic groups.”

“Statewide, our jail population fell by over 30% within a year,” said Harris-Calvin. “When we look at racial disparities, that meant thousands more Black and brown New Yorkers were not being held pretrial simply because they were too poor to pay their way out.”

But these advances were soon overshadowed by a spike in crime during the COVID-19 pandemic. Opponents of bail reform used the increase to claim that this reform was at the heart of a threat to public safety, a claim the data would later refute.

In part two of our series we will explore the stories of those held in pretrial detention because they could not afford bail as well as how this form of incarceration can actually lead to more crime.

In part three we will dive deep into the data that shows the success of bail reform in New York as well as in Houston, where bail reform happened even earlier.

This series was made possible with the support of a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights in conjunction with Arnold Ventures. Editing support was provided by Type Investigations.

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Why Bail Reform Was Needed P A R T

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By DAMASO REYES Blacklight Investigative Editor In early December 1975, the Amsterdam News published a front page story about a “revolt” on Rikers Island that ended peacefully after hours of negotiations involving a federal judge, the Bronx district attorney, and the corrections commissioner, among other officials.

“Inmates in the House of Detention for Men [HDM] on Rikers Island seized control of their cell area protesting the inhumane treatment received at the correction facility,” the article began, going to explain that after the 17-hour revolt came to an end, 200 correction officers engaged in a four-hour wildcat strike.

“Both inmates and guards agree that conditions at HDM are unbearable ... Overcrowding [and] poor living conditions and treatment touched off the uprising among the 1,816 inmates. Overwork and understaffing caused the guards to stage their protest,” the article continued.

Jam-packed facilities, lack of timely

“No one should be pleading guilty simply because they want to go home” —Scott Hechinger, founder and director of Zealous, a nonprofit that supports state and local public defenders. advocates to champion bail reform.

Bail, and pretrial detention for those who could not afford it, has often been presented by public safety hawks as a way to keep the public safe, but the statistics tell a different story.

For the low-level misdemeanor and nonviolent felony crimes that would be covered by the 2019 bail reform law in New York, those that Safety at Any Price were held in pretrial detention beIt was this dichotomy—those of cause they could not make bail means were often released and spent relatively little time behind those who were poor mostly re- bars—just 60.8 days, according mained locked up—that pushed to experts at the John Jay College medical care, and violence and deaths have all been part of what has for decades made Rikers Island a destination to be avoided at any cost. But as horrific as Rikers and other jails are, the need for such facilities exists in part because so many people are held in pretrial detention unable to afford bail—sometimes set at just a few hundred dollars.

of Criminal Justice. This is mainly because their cases were almost always resolved quickly, after which they were then released. So before bail reform was enacted, these allegedly dangerous criminals were, in fact, often back on the street quickly; but the impact of their time behind bars could be profound.

“Say, for example, somebody’s detained pretrial. As a result, they miss some shifts at work, and their boss fires them. So, now they’re released, even if it’s just a few days later, from pretrial detention, and they have no charge and while they were in

Drill instructor Monserrate Ponce demonstrates his use of military discipline with inmate Benjamin Brooks at the Mateo Institute of Training at Rikers Island in May of 1992.

(AP Photo/Mark Lennihan)

jail, they may or may not have met someone who told them, ‘There’s other streams of income; I can help you with that’,” said René Ropac, a senior research associate at the Data Collaborative for Justice (DCJ).

He spoke about the “criminogenic effect” that being in jail or prison has: that simply being in jail, even for a short amount of time, can lead to a measurable increase in the likelihood that you will commit future crimes.

His colleague Michael Rempel, director of the DCJ, expanded on this idea.

“It is not as though setting bail incapacitates people for extremely long periods of time. The average was still only two months, which in a lot of these cases, is enough experience in jail to have harmful effects once they are released.

But it’s not really enough time to take them off the streets and prevent the arrest simply by virtue of incarcerating them,” he said.

D’juan Collins is a leader of Voices Of Community Activists & Leaders (VOCAL-NY), a grassroots, com-

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munity-based organization which advocates for those impacted by mass incarceration among other issues. Over 15 years ago, he experienced the impact of pretrial detention in New York first hand.

“I lost my son Isaiah to the foster care system as a result of [my] 2007 arrest for an alleged drug sale and criminal possession of a controlled substance ... while I was a single parent,” he told the AmNews. He could not afford the bail that was set and as a result lost custody of his son.

If bail reform had been in place at the time, he said, “I would have been able to care for my son and make arrangements to place him with his family in Chicago while my criminal case was pending in Manhattan.”

The impact of his pretrial detention, and how it fosters crime, is now multigenerational, continuing to impact his son.

“Well, to my knowledge, he’s now in a gang. He doesn't want anything to do with me. He believes that his family abandoned him, because

the foster parent ... brainwashed my son to believe that his family didn’t love him. And the system helped with that,” Collins said, holding back tears.

Eileen Maher spent more than a year on Rikers Island in pretrial detention because she could not afford bail. She ended up losing her dog-walking business as well as her apartment while in custody.

“I knew that if I had gotten out on bail that I would have had a better chance of fighting my case,” she said, describing her time at Rikers as “absolutely dehumanizing…

The longer I was there, the more I felt I was gonna become unhinged soon. I really did need to go home.

And no one was helping me. So the only way I could get out of that situation was to take a plea and get home myself.”

That plea agreement and the criminal record that follows her continue to impact her life. After finding a job, she said she was let go after just a year when she says her employer learned of her time in jail.

“I was fired because of my crimi-

nal record. When I explained to them what happened, that I had been a criminalized survivor of domestic violence, that I had been stuck on the island ... they said, ‘Innocent people don’t go to prison. They don’t take pleas, if you really didn’t do it, you wouldn't have pled guilty.’”

Without a Chance

“If you are locked up awaiting trial, you have much less access to your attorney, you are dealing with the horrors of prison life, you often have medical problems that are not being addressed. It makes you very cynical about the whole system,” said Jed Rakoff, a sitting U.S. district judge in the Southern District of New York.

“Of the 2 million people [held across America in detention], several hundred thousand are people who are awaiting trial. And almost all of them are going to wind up pleading guilty, even those that are innocent. So [while] bail is an aspect of that, the bigger problem is mass incarceration,” he added.

See REFORM continued on page 31

Dismal Conditions

In December of 1975 the Amsterdam News covered a revolt at Rikers Island by inmates in which guards also held a wildcat strike to protest conditions at the jail. For decades the conditions on Rikers Island have been the subject of scrutiny.

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Freedom from Fear of Crime P A R T

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Illustration by Thais Silva

INVESTIGATION

BEYOND THE OF THE

By DAMASO REYES Blacklight Investigative Editor Room 130 of the New York County Criminal Court is about the size of a middle school auditorium, but lacks the splendor of Surrogate’s Court and other monuments to justice in Manhattan. The prewar art deco building at 100 Centre St. is showing its age.

Old murals line some of its walls and the solid wooden doors are heavy enough to allow a regular visitor to give up a gym membership.

Room 130, and rooms like it throughout the city, are the defendant’s first stop after getting arrested. It is here that a defendant is formally charged and then one of two things happens. The first pathway is that the accused is released.

This can happen because bail has been set and the defendant can pay it, or in rare instances, because the judge throws out the case. The alleged crime may also be ineligible for bail under the 2019 bail reform law—though the judge may set other parameters for release, such as attending a treatment program.

The second pathway is that the accused is remanded. This could be because the judge fears the person will not return to court. It could also be because bail has been set in the case but the defendant cannot pay the amount set. As a result, the accused—who has not yet been convicted of a crime—must wait in jail, often on Rikers Island, until the person pleads guilty, the case is dismissed, or until the person goes to trial and is found not guilty, a process that can take years.

Before bail reform passed in 2019, tens of thousands of New Yorkers each year fell into this last group, often after being accused of misdemeanor crimes like stealing food from a bodega or buying, selling or being in possession of small amounts of drugs including marijuana, until it

was decriminalized in New York.

In New York, which does not allow judges to factor in how dangerous someone might be if released, the only consideration allowed when deciding to set bail is the likelihood that the accused will return to court.

The amount set is designed to encourage the defendant to return because if the defendant does not, the entire amount may be forfeited. But the Eighth Amendment also requires that the amount set not be excessive, meaning that the accused can actually afford it.

For decades in New York and around the country, bail was routinely set in amounts that people could not afford, leading them to languish in jail for months or even years until more often than not, they pled guilty simply in order to be released, not because they were, in fact, guilty.

“These decisions are made very fast,” Brooklyn defense attorney Masai Lord told the AmNews.

“A whole bail application will take maybe three minutes, and [if] it goes for a long time, maybe 10 minutes.”

In those few minutes, a defendant’s life may change radically: If bail is waived or set at an afford-

able level, the defendant will be released and will be much better able to fight the case. If no bail is set or set at a level the defendant can’t pay, the defendant goes to jail and may lose a job, housing and even custody of children, all before the defendant is found guilty.

Changing the Rules of the Game

Bail reform in New York “eliminated the use of cash bail and pretrial detention for most misdemeanors and nonviolent felonies, and kept cash bail and pretrial detention as an option for violent felony offenses,” said Krystal Rodriguez, a policy director at the Data Collaborative for Justice at John Jay. “The other thing that the 2019 reform did is that it created provisions requiring the court to consider affordability of bail. So even for those violent felony offenses, most of which remained eligible for cash bail, when the judge was setting bail, they still had to consider whether or not someone would face an undue hardship to post that bail and whether or not they can afford it,” she added.

The 2019 reform also gave judges the ability to set non-monetary conditions on the release of a suspect, including monitored or supervised release. The reform additionally required the courts to gather data to measure how bail reform was working.

Before and after the passage of bail reform, tough-on-crime pundits and politicians, including New York City Mayor Eric Adams, who is a former NYPD captain, said that these reforms would lead to a spike in crime. And during the pandemic, when there was indeed a spike in many crimes, the mayor was quick to assign blame.

“Under the current law, judges are not allowed to consider whether someone is a threat to public safety when deciding whether or not to hold them in custody. This is a big mistake,” the mayor said at a 2022 press conference. “As a result of this insane, broken system, our recidivism rates have skyrocketed and those who say that the predicted wave of recidivism wouldn’t happen and the studies that claim to show that the rate of arrests for violent felonies has not changed since the reforms were passed, [I] have one word for you: wrong.”

Critics like the mayor often cherry pick or conflate numbers. But what is the truth about the impact of bail reform? Has it unleashed a wave of crime, especially gun crime, upon New York City streets or has it liberated thousands of people who would otherwise be suffering the horrors of Rikers Island and jails like it?

The Amsterdam News spoke to experts and social scientists about bail reform both in New York and also in Harris County, Texas, where it was implemented even earlier and a federally appointed court monitor has been collecting and analyzing data on what happens to those who are released for several years.

Deep in the Heart of Texas

“There is deep, deep damage that is done from even just a few days of pretrial detention,” Cody Cutting, an attorney for the Civil Rights Corps, told the AmNews.

“People are not only separated from their families and their loved ones, but they suffer consequences, like losing their jobs, falling behind on rent and potentially losing their homes. They can suffer

T H E custody ramifications for their kids, they can be separated from critical medical care or medicine that they need. And these effects can actually last quite a long time even if somebody is eventually released.”

The Civil Rights Corps was one of several organizations that sued Harris County, which encompasses Houston, over the way that it set bail.

Before bail reform, someone arrested in Harris County would go before a magistrate who would conduct a probable cause hearing, to see if the arrest was, in fact, justified.

If so, a bail hearing would follow. A single judge could conduct dozens of these a day and they would usually last only a few minutes.

“What usually would happen in those situations is the magistrate is going to consult a grid—a bail schedule—which would assign either release on their own recognizance for some folks, but for many folks there will be a scheduled amount of bail between $[500] and $5000 for those charged with misdemeanors,” said Paul Heaton, a legal scholar and professor at the University of Pennsylvania’s School of Law who analyzed how bail reform played out in Harris County. If a defendant could pay 10% of the amount set they would go free, if not, they would remain in jail.

“You could see, particularly with respect to misdemeanor cases, how a system like that could inadvertently create wrongful convictions,” Heaton said. “Let’s imagine I’m arrested for a misdemeanor, I go through this process. My bail is set at $1,000. I don't have 100 bucks. So I’m there in pretrial detention for a few days.

“A district attorney gets my packet, they look at it. ‘Oh, hey, Paul was charged with misdemeanor disorderly conduct. He’s been in custody for four days, that kind of seems like enough punishment. I’m just gonna go to his attorney and say plead out.

We’ll have you home today. Time served, done.’

“A defense attorney comes to me, ‘Hey, we've got this pretty good offer from the DA, right? I know that you’ve been here for four days now, if you plead out.’ But wait, it wasn’t me. The police arrested the wrong person in the bar fight. So, in that situation, I have this difficult choice. If I want to actually fight my case and assert my innocence, then my detention is prolonged? Maybe the next court date is a week or two weeks from then.

Whereas if I plead guilty right away, I’m actually reducing the amount of time I spend in custody.”

It is this dynamic, which advocates and defense attorneys say plays out around the country, that leads to

many innocent people to plead guilty to crimes they did not commit.

Eventually, Harris County agreed to a consent decree to alter how and when it set bail, doing away with the bail schedule as well as limiting the number of crimes for

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Defense attorneys have long argued that the setting of excessive bail, and the pretrial detention that often results, has been used by prosecutors to leverage guilty pleas and the data from the Harris County federal monitor seems to support that

that these are people who do not need to be in jail. At best, maybe they need some supervision. At worst, the cases were actually meritless or not worthy of prosecution,” Garrett, the federal monitor, said.

“But either way, we’re seeing

The then "new" Rikers Island prison in May of 1935 was "said to be the last word in penal institutions."

(AP Photo/John Rooney)

which bail could be set.

“We’ve described in our reports how there have been some real notable successes of these bail reforms, both in terms of people’s liberty— tens of thousands of people who would have been jailed under the old system who are not now—but also for public safety,” said Brandon Garrett a professor at Duke University School of Law who was appointed as federal monitor to ensure the consent decree was being properly implemented.

conclusion. Once bail reform was implemented and more defendants were released instead of jailed, fewer people were found guilty and more of their cases were dismissed.

Perhaps most dramatically, the data show that between 2015 and 2021 an astonishing 60% fewer misdemeanor cases in Harris County result in a criminal conviction and the number of these cases that end in dismissal rose from 31% to 56%.

“There’s something deeply wrong with what was happening before,

ended up in jail under the old misdemeanor system and those disappeared pretty quickly under these reforms,” he said.

Big Reforms in the Big Apple

In New York, the implementation of bail reform coincided with two other big events: the decriminalization of marijuana and the start of the coronavirus pandemic that led authorities to try and decrease the numbers of people in jail for public health reasons. Both events made it more difficult to understand the impact of bail reform but with time the data, and the impact on public safety, became more clear.

“The overall effect was that the ban of cash bail and pretrial detention reduced recidivism in New York City for people who were affected by judge’s release decisions,” said René Ropac, a senior research associate at the Data Collaborative for Justice (DCJ), John Jay College of Criminal Justice, who co-authored a recently released study on the impact of bail reform.

The report notes that eliminating bail for most misdemeanor and nonviolent felony charges reduced recidivism. There were reductions for any rearrest (44% vs. 50%) and felony rearrest (24% vs. 27%) over two years.

For all the claims by bail reform critics linking the legislation to a pandemic-era spike in gun violence, the report shows that those released due to bail reform during the period studied were actually slightly less likely to be rearrested on a gun charge.

“We compared people who were bailed or detained pre-reform in the first half of 2019, with similar people who were released without bail mandatorily after reform passed in 2020, and we found that people who were released had lower recidivism rates than people who were bailed or detained pre-reform,” Ropac added.

Ropac expanded on the impact of the 2019 reforms.

“Critics of bail reform basically claimed ... that bail reform was detrimental to public safety, because people who are accused of certain charges cannot have bail set and therefore cannot be detained. ...

And, therefore, they’re not prevented from committing further crimes in the pre-trial period. And that is fair enough—people who are in jail cannot commit crimes out on the streets. That is true,” Ropac said.

“However, what our study shows is that once they’re out, once they’re

many tens of thousands of cases where the ultimate result is now a dismissal, which clearly would not have been dismissed under the old system,” he added.

He also noted that there was a measurable impact on public safety: arrests and crime went down.

“We’ve seen that misdemeanor arrests and rearrests have gone down over time, and a lot of other ways that this system has produced real positive effects. There had been racial disparities in who See FREEDOM continued on page 30

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FREEDOM

A demonstrator holds an image of Kalief Browder at a protest near City Hall in New York City, NY, USA to demand that it close the longcontroversial Rikers Island.

Browder commited suicide after being held for years on Rikers Island without being convicted of a crime (Photo by Albin Lohr-Jones/ Sipa via AP Images)

Continued from page 29

released from jail, and again, that’s about only two months, on average, after they were first detained, they are actually more likely to recidivate than they would be otherwise, because of that criminogenic effect” from incarceration.

The criminogenic effect, backed by data, that being in prison makes it more likely that you will commit future crimes, is something that bail reform opponents rarely speak about.

“The rise in violence is completely separate from bail reform and blaming bail for the safety problems we have makes us less safe, because it makes us less likely to confront the actual causes of this increase in violence,” said Tess Cohen, a former prosecutor in New York City’s Office of the Special Narcotics Prosecutor, who recently waged an unsuccessful bid to unseat the current Bronx district attorney.

“We’ve seen that setting bail actually, especially sending someone to a place like Rikers, makes them more likely to commit another crime in the future,” she added.

Recent citywide crime statistics from the NYPD put rest to the idea that bail reform was fueling a rampant increase in crime. While felony assaults did increase by 6.6% from the year before, murders are down 10.1% from a year ago; rapes are down 12.8%, robberies are down 5.6%, and burglaries are down 13% from 2022. Shootings are also down 25.8% year to date.

Liberty and Safety

Since 2019, two sets of legislation changed the scope of bail reform but didn’t manage to scuttle the progress of advocates fighting to ensure that fewer New Yorkers languished behind bars solely because they could not afford bail. But it’s an open question as to whether bail reform in New York will survive the continued onslaught from tough-on-crime Democrats with aspirations for higher office, as well as Republicans and police unions trying to use crime as a wedge issue.

“Bail has become a scapegoat for law enforcement, politicians, [and] prosecutors who want something to blame for the rise that we’re seeing in violent crime last year.

And bail is a convenient source of blame. But the reality is that the data doesn't bear it out at all,” said former prosecutor Cohen.

“The rise in violence is completely separate from bail reform and

blaming bail for the safety problems we have makes us less safe, because it makes us less likely to confront the actual causes of this increase in violence.”

With all the focus on statistics, it is also vital to not lose sight of the people who are most impacted by bail reform.

“This bail system that we currently have is based on wealth. And unfortunately, it’s mostly working class or poor people who are held

pretrial,” said Darren Mack, cofounder and co-director of Freedom Agenda, a nonprofit that organizes communities impacted by mass incarceration.

Mack was arrested in 1992 for being an accomplice in a robbery and given a $4,000 bail that he could not pay. He spent 19 months on Rikers Island before going to trial and being convicted for his first offense. He spent a total of 20 years behind bars.

“I think we can have criminal justice, social justice, economic justice and public safety simultaneously. It’s not two opposing issues, and if we look to other states and other cities and other countries we see that we can have both. It's not either/or; we can have both and,” Mack said.

For decades, America has ignored Ben Franklin’s admonition: "Those who would give up essential Liberty, to purchase a little

temporary Safety, deserve neither Liberty nor Safety."

The Amsterdam News; Report for America corps member Tandy Lau contributed reporting for this story.

This series was made possible with the support of a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights in conjunction with Arnold Ventures. Editing support was provided by Type Investigations.

T H E

October 19, 2023 - October 25, 2023 • 31

THE NEW YORK AMSTERDAM NEWS

P R I C E

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Defense attorney Masai Lord puts it in equally stark terms: “When you have people with no criminal records ... of course, they’re terrified of going to jail, they’re going to plead guilty to something very often that can have life-altering consequences. And they get a few minutes to decide.

“And they're doing it because they’re terrified of going to Rikers and bail being set. And at least the one thing that bail reform did was to remove that… I don’t have to plead guilty to something I didn’t do as a way of avoiding going to Rikers Island and being in jail the entire time while I’m trying to fight my case,” he added.

Masai said that he has had clients who were innocent but pleaded guilty simply to avoid, or get out of, Rikers. He also had two clients who remained on the island and maintained their innocence, going to trial.

“We won both the trials, both of them were found not guilty and acquitted. And then you get this question where people spend five, six, seven, months in jail, on false charges and they can’t get anything for that, because they say, ‘Oh, there was probable cause for the arrest.’ So, therefore, we just took away six months of your life, seven months of your life, for a crime you said that you didn’t commit. And there’s no recourse, you get nothing. And the system’s allowed to do that and repeat that,” he said.

Tilting the Scales of Justice

“No one should be pleading guilty simply because they want to go home,” said Scott Hechinger, founder and director of Zealous, a nonprofit that supports state and local public defenders. “And simply because they’re fearing the violence that they’re facing on the inside of jail, because they can't afford to pay their bail."

He also noted the profound impact that pretrial detention has on our society.

“It doesn’t just hurt people, it actually silences truth and forces guilty pleas,” he said. “95% of convictions in the United States come from guilty pleas and a major reason for that is pleading guilty to go home or to get less time, to plead down from a more serious offense, whether or not the person is innocent or guilty, whether or not the person has been stopped and frisked or unconstitutionally

or subjected to other police misconduct,” he added.

“Pretrial detention perverts a system of justice. So when people are incarcerated pretrial, they are far more likely to take a guilty plea. And you can understand why that, particularly in lowerlevel cases, prosecutors will often come to people and say, ‘If you take this plea, I’ll give you time served and you can go home tomorrow,’ and then people end up with permanent records, and it ends up fueling this system that is not interested in truth, but is instead a sort of conveyor belt of convictions,” Katie Schaffer, director of advocacy and organizing at the Center for Community Alternatives, said in an interview.

“98 % of convictions in New York state come through guilty pleas, not through trial. And that’s because of a constellation of laws and policies.

But an important part of that is about pretrial incarceration,” she added.

“There’s no real cost to judges and prosecutors for locking people up pretrial. So, let's say you’ve got 100 people, statistically speaking, only five of them are going to reoffend. From the judges standpoint, there’s no cost and [they] say, ‘Well, I’m just gonna, you know, all 100 of you are gonna stay locked up. And then that way, none of you will reoffend and I won’t look bad’,” said Clark Neily, Cato Institute senior vice president for legal studies.

“But then you’ve got 95 people

who were no risk to the community and no particular flight risk being locked up before trial for no reason, simply because we couldn’t figure out ... which subset of those people would actually have run off, or would have victimized somebody if they were allowed to be released pretrial,” he added.

This is an idea that retired U.S. District Court Judge Shira Scheindlin rejects.

“I think each case that comes before you stands alone. I don’t think you’re looking at the big picture and assessing the risks on the one hand of detaining a person who shouldn’t be detained versus the risk of releasing somebody and then having them commit a crime and feeling terribly responsible,” she said of the way that judges consider whether to set bail. “I think you look at each case, all by itself, one at a time. And if you’re honest, you do your very best

Illustration by Thais Silva

to make the right call.”

Despite what the Constitution might say or what the foundations of our legal system might indicate, America has for decades been increasing the percentage of citizens it detains before they are convicted of a crime.

“When I was practicing as a public defender, something close to 90% of the people who I represented weren’t able to afford the bail that was actually set,” said Hechinger. “So, the result of this is that in the United States, in addition to [this being] the most incarcerated society in the history of the world, but also a quarter of those who are currently incarcerated are there pretrial, presumed innocent on unaffordable bail, incarcerated solely because they don’t have enough money to buy their freedom.”

This is what bail reform in New York was supposed to address. But that argument about presumption of freedom ran headlong into a pandemic increase in crime for which bail reform became a scapegoat. Nearly as soon as it was passed, efforts were made to roll back those reforms.

This series was made possible with the support of a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights in conjunction with Arnold Ventures. Editing support was provided by Type Investigations.