Mimesis Law
8 August 2020

De Blasio’s Temporary Bail Fix Totally Misses The Mark

July 15, 2015 (Mimesis Law) — Mayor Bill de Blasio’s announcement that $18 million would be allocated to provide hard-pressed judges an “alternative” to setting bail was greeted with optimism from nearly every quarter. Even New York’s top judge, Jonathan Lippman — who in the wake of Kalief Browder’s suicide called the bail system “totally ass-backwards” — applauded the mayor.

But de Blasio’s rhetoric around bail and the small print of the new proposal do more than necessary, and belie the very reason bail exists in the first place: to ensure a person’s return to court. According to city figures, up to 45,000 people are held on bail annually. But the new program will only spare around 3,000 low-risk defendants from hell at Rikers Island. What gives?

“Money bail is a problem because — as the system currently operates in New York — some people are being detained based on the size of their bank account, not the risk they pose,” de Blasio said. “This is unacceptable. If people can be safely supervised in the community, they should be allowed to remain there regardless of their ability to pay.”

Safe supervision in the community is the alternative. And by premising it on the potential “risk” defendants pose, as opposed to their financial ability to make bail, de Blasio has found an end-run to New York law, which long ago disavowed the notion that “risk” or “danger to the community” are the guideposts a judge should follow when making a bail determination. As it is, the bail statute in New York is one of the most progressive in the nation.

But as you may recall from Kalief Browder’s story, all the progressive values underlying the bail statute go out the window in New York, especially in the Bronx. Instead, the reality in the courtroom is guided by a complex regime of laws, procedures, and entrenched practices where prosecutors, judges, and defense attorneys are all silently complicit. All of those things plus torment at Rikers led to Browder’s undoing.

And as politics would have it, the language of “danger” and “risk” persists, at a time when the crime rate in New York is at the lowest it’s been since 1994. And judges, fearful that a 16-year-old accused of stealing a backpack may be a menace, will summarily set bail at $3,000, just to be safe. De Blasio’s new proposal advances the idea of safety, but now instead of having Rikers guards serving as guardians, the job will fall to a new mini-bureaucracy of pretrial supervisors.

Courts will now “release” low-level defendants into a pretrial release program, something like being on probation, but ostensibly less onerous. As described by the mayor’s office, the new program will consist of “regular check-ins in person or by text message,” as well as “connection to programs and services that address defendants’ particular needs.”

In practice, all of this could very well help a young kid from the Bronx attain a semblance of structure in his life, if indeed that’s what he needs. But it’s a bureaucracy nonetheless, built on a pilot program that began in Queens in 2007 — Manhattan joined the action in 2013 — that will now extend to the rest of the city. It is clearly a work in progress, and de Blasio put out a request for proposals for independent vendors interested in “identifying those who can be safely supervised in the community pending the resolution of their case.”

That leaves out Kalief Browder. The people of New York didn’t consider him “safe.” This new system would’ve presumed him a violent offender, based on his initial robbery and assault charges. Never mind that he was already on probation for a prior juvenile offense. Because the new system, like bail, is meant to kick in at the initial stage of the criminal process, it will be the prosecutor’s word that controls. And so long as the prosecutor says the charges are robbery and assault — absent a miraculous argument by the defense — pretrial supervision will be off the table. And it’s back to an unreachable bail amount.

But even if Browder had somehow made the cut, the very supervisory nature of the initiative, like other forms of government control, could bring disruption to lives that may just need a bit of normalcy. For one, communities of color are already the hardest hit by prosecutions both large and small.

And being accused of a crime, nonviolent or not, is already disruptive as it is, and the numerous trips to the courthouse and the uncertainty of a prompt resolution already weigh heavily on a person. When you try to do all this while keeping up with your pretrial supervisor and you’re doing your best to keep a job, find childcare, juggle school, and remain in treatment, it wouldn’t be a surprise if some defendants crash and burn under the pressure.

This is not an untested hypothetical. Take it from Robin Steinberg of the Bronx Defenders and David Feige of Bronx Freedom Fund, two leading advocates for bail reform in New York City. In an editorial responding to de Blasio’s proposal, they questioned the necessity for a “new government apparatus,” weighed against the reality that returning to court is indeed a “tiny” problem overall: according to data from their own organizations and the New York City Criminal Justice Agency, the vast majority of defendants do return to court. There’s no need to subject them to an array of conditions and consequences that treat them as if they’re already guilty.

Steinberg and Feige aren’t merely contrarians because they’re on the defense side. If anything, they’re pragmatists and want everyone to follow the law. New York already grants judges a number of alternatives other than money bail, like “personal-recognizance bonds or other forms of bail that involve signing a promissory note.” The law already makes room for this; reinventing the wheel or inventing a new system of control cures an ill that’s simply not there.

Main image via Flickr/Susan Sermoneta

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  • Bail Reform Idea: Force Judges To Practice The Law
    27 July 2015 at 8:51 am - Reply

    […] of locking people up for months and years without them being convicted of anything, we are seeing proposals to build a form of probation for people charged with crimes. The person who is arrested for, say, a drug possession charge, will be able to avoid a jail cell, […]

  • Civil Freedoms – People who should be released from jail are dying there instead
    4 August 2015 at 3:18 pm - Reply

    […] Recently, under the glare of the suicide of Kalief Browder—who was unable to make bail and held for three years in pretrial detention at Rikers Island for a crime he did not commit—has been taken up in New York City. […]

  • The Dangerous Criminal Lie | Simple Justice
    3 October 2015 at 11:13 am - Reply

    […] Jonathan Lippman ages out in December, and has chosen his cause: to end the bail disaster that leaves the poor in jail for lack of a thousand dollars, particularly when there is no good reason to hold them in the first place.  It’s a worthy cause, even if it could have been accomplished swiftly under New York’s existing law. Doesn’t anybody actually read the law anymore? Anybody? […]

  • Voice of Reason: Daniel Squadron is Right on Speedy Trail Reform
    16 November 2015 at 10:34 am - Reply

    […] to talk about bail. Hell, I am one of those people. Over the last year, we have heard talk of a fair bail system to come, but very little has changed to stop us from sending droves of people off to jail in spite of the […]