This week, the Robert F. Kennedy Foundation began a month-long “mass bailout” project in New York aimed at highlighting the inequalities of a system that forces the poor to remain behind bars before trial simply because they cannot afford money bail. Local DAs fumed, but a former NYC probation commissioner explains why he decided to participate.
This week, my wife Grace and I participated with a group of volunteers in the Robert F. Kennedy Human Rights “mass bailout” project. Several colleagues have asked me why I, a former probation commissioner once responsible for supervising some 30,000 New Yorkers, joined the controversial project.
Public safety is obviously a concern of mine, along with equity and fairness. So I believe an even-handed explanation is in order.
The widespread use of money bail is a subject of growing debate. Should people accused but presumed innocent of crimes be jailed, released on their own recognizance, released under supervision, or required to post bail?
And what role should personal wealth have in who is jailed and who goes free?
In New York State, courts can only consider an individual’s likelihood of appearance in determining whether to set bail and at what amount. This is where it gets tricky. A million dollars’ bail is prohibitive for most defendants—as even $1,000 or $2,000 can be.
Not so for a wealthy defendant accused of serious sex crimes like Harvey Weinstein who was immediately able to post $1 million bail and be released.
The Eighth Amendment of the Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Presumably, the bail set on the defendants that RFK is bailing out is to assure their appearance, not to detain.
If judges want to detain someone accused of a serious crime, they can remand them.
As such, understanding how often defendants released before trial appear in court is crucial in assessing the viability of the RFK bailout.
Even though New York City has a very high rate of pretrial release compared to other jurisdictions, three-quarters of those incarcerated in our city’s jails are held pretrial.
Yet, when defendants are released, they almost always faithfully appear. Ninety-six percent of people accused of felonies who are released pretrial appear either at their assigned court date or within 30 days of it. Their four percent failure to appear rate is half the eight percent failure rate of persons accused of misdemeanors.
To aid decision-makers, persons accused of crimes in New York City are scored on a risk assessment instrument that recommends release or detainment. Yet, even those not recommended for release appear eight out of ten times at their scheduled court dates, and nine out of ten times within a month.
Skin in the Game
Some have raised concerns that high appearance rates only happen because defendants or family members have “skin in the game” via bail. Several non-profit bail funds in New York City bail out people accused of misdemeanors with whom they have no relationship. By forming a personal bond and accessing social services for those they bail out, these organizations achieve court appearance rates of around 90 percent.
So the vast majority of people released from jail pretrial appear initially or soon thereafter; people accused of felonies appear more frequently than those accused of misdemeanors; and people bailed out by strangers at a bail fund have high appearance rates.
Even though public safety is not a legally authorized consideration in setting bail in New York, it is obviously on people’s minds. Queens District Attorney Richard Brown deemed the bailout “clearly a threat to public safety.” Critics also included Manhattan DA Cyrus Vance and New York Police Commissioner James O’Neill.
While people are unable to commit crimes in the community during their incarceration, this must be weighed against the impact jail has on their likelihood to offend upon release.
The Arnold Foundation reports that as little as 48 hours in pretrial detention increases post-release rearrests. The Center for Court Innovation found that individuals sentenced to New York City jails have a greater likelihood of rearrest in every risk category when compared to a similar population of defendants not jailed.
As we consider the public safety impact of bailing out youth, several factors are important to take into account. Youth are particularly susceptible to abuse in adult correctional facilities.
Rikers Island has a long and troubled history of violence and abuse in its adolescent units. As far back as 1972, the city’s jail oversight body, the Board of Correction, wrote that, “the [adolescent] facility is the worst prison in the city.” Four decades later, when the U.S. Department of Justice investigated Rikers Island, their 2014 report decried a “deep-seated culture of violence” in the adolescent unit.
This has a profound impact on young people who are incarcerated. National research reveals that youth under age 18 are 400 percent more likely to be sexually assaulted in adult jails and 36 times more likely to commit suicide than youth in juvenile facilities. Even in juvenile facilities, one out of eight youth reported being sexually assaulted in the previous year.
Even though 16- and 17-year-olds were recently moved out of Rikers Island into facilities run jointly by the Department of Correction and Administration for Children’s Services, youth are particularly vulnerable to the negative influences of other peers in correctional settings and are especially damaged psychologically by incarceration.
This heightens the importance of using community-based supervision and treatment approaches in lieu of incarceration.
The city, judges, prosecutors, defense attorneys and non-profit organizations have already enacted a raft of reforms to safely reduce the number of youths and adults confined pretrial, ranging from reducing court delays, to assessing risk, to online credit card bail payment, to expanded supervised pretrial release. That is partly why, in a city of 8.6 million residents, there were only 86 16- and 17-year-olds in our jails on July 9, 2018.
Of those detained, it is important to note that the vast majority of youth do not end up being sentenced to state prison, either because their cases are dismissed, they are acquitted or they receive relatively short local jail sentences or probation. According to NYC data, 55 percent of 16-18-year-olds were released within 10 days, and only 4 percent were transferred to state prison.
So most of those bailed out by RFK would be released soon anyway, generally within a few months. The more serious cases are often remanded and therefore are unable to be bailed out by RFK.
So, to summarize, jail makes most people more, not less likely to reoffend; youth who are being bailed out are especially vulnerable during incarceration; and most of those being bailed would be out soon anyway.
RFK is working with several of New York’s most highly-respected non-profit organizations to assist in the safe reentry of those they bail out. The Fortune Society, Friends of Island Academy and the Osborne Association regularly provide reentry planning for people returning from city jails and have been collaborating with RFK to help those being bailed out.
RFK has also established a “welcome center”—for now at the Fortune Society but soon to be relocated near the entrance to Rikers Island—where those released can be reoriented to the community and receive items like a Metro card and a cell phone so they can be reminded of their court dates.
New York Pushes the Reform Envelope
Since the mid-1990s, New York City has emerged as a national criminal justice reform leader, cutting its incarceration rate by more than half, while crime has continued to plummet. That has allowed Mayor Bill de Blasio to announce the planned closure of Rikers Island, something unthinkable even a few years ago.
We did not get here by being cavalier with jail releases, but by experimenting with a range of reforms in one of the most vibrant and thoughtful justice communities in the country. That work positions us now as both the safest and least-incarcerated big city in America, something in which we should take great pride.
The RFK mass bailout is pushing that envelope.
Like experiments before it, it is not without risk or imperfections, but it has been done thoughtfully and with a strong data and theoretical backing. The bailout will soon provide additional data on how effective and fair bail is as a public policy, if we have the wisdom to assess it fairly.
I chose to join rather than criticize from the sidelines because I truly believe that in America, we need to separate wealth from liberty. Our system of money bail badly fails to do so, contributing to an environment in which 96.6 percent of the adolescents we confined on July 9, 2018 were youth of color and more than half are diagnosed as mentally ill.
That is an appalling reality that demands bold but reasoned action, not equivocation.
And that is why I helped bail someone out this week.
Vincent Schiraldi, co-director of the Columbia University Justice Lab and a Senior Research Scientist at the Columbia University School of Social Work, served as NYC Commissioner of Probation between 2010-2014. He welcomes comments from readers.