When Justice Becomes Unjust: Abolishing the Money Bail System to Create Equality for All

By KELLY GIBNEY


Mass incarceration is one of the United States’ systemic problems that need to be addressed. One of the main causes of mass incarceration, especially in New York, is the bail system. The original intent of the bail system was to ensure that defendants showed up to their court dates.[i] A judge requires the defendant to pay a certain amount of money in order to be released, which in turn creates certainty that the defendant will attend their trial date. It is important to note that those who are considered too dangerous or a flight risk are often not offered bail. Today, however, posting bail is something that separates the rich from the poor, not the dangerous from the harmless. While there are several types of bail, the most common forms in New York are cash bails or bail bonds, where a bail bondsman fronts the bail amount in exchange for a non-returnable fee and temporary collateral from the defendant.[ii] There are many problems with this. The average cost of bail in New York is $1,000 or less, but rarely falls below $500.[iii] Despite these somewhat modest numbers, in New York City for example, only 15% of defendants are able to provide this amount at the time of the arraignment.[iv] Therefore, the other 85% of defendants are either forced to go to jail to wait their trial date or plead guilty on the spot, even if they are innocent. Neither of these is an adequate option; if people cannot pay bail, their lives will be negatively affected whether or not they are proved guilty.

There are great implications of the unequal bail system. First, this inequality against the poor has allowed for the bail bond industry to prosper. Bail bondsmen are involved in a for-profit, multi-billion dollar industry at the expense of struggling New Yorkers.[v] This further contributes to growing economic inequality. Additionally, the current bail system is a large factor in the high incarceration rates in New York. While New York has been making substantial progress in dropping its prison populations (in 2016 the population was down to 22,580), there is still more that can be done.[vi] Much of this decrease in population can be contributed to improved rehabilitation programs, judicial attitude, and a change in the minimum sentencing laws.[vii] However, New York could decrease this number even further, as shown by New Jersey where bail reform has been adopted. Comparatively, New Jersey has decreased their jail population to 19,619 since getting rid of cash bail almost entirely.[viii]

Not being able to post bail affects both the defendant and the everyday taxpayer. For the defendant, not posting bail means being sent to a state prison, and for many defendants in New York City this means the notoriously dangerous Riker’s island. According to a New York Time’s article, “Sexual and other physical assaults are most common in the first three days. Almost half of deaths in jail, including suicides, happen the first week.”[ix] Therefore, these “few days” in jail before one’s trial does not just consist of sitting in a jail cell, it can be a life altering experience. On top of this, the days that defendants wait in jail can take away from weekly income, potentially cause them to lose their jobs, and can greatly affect their families.[x] In terms of affecting taxpayers, putting someone in prison costs a large amount of money. At Riker’s Island, the cost of keeping one person at the prison is $247,000 a year.[xi] By reducing the unnecessary amount of people going to places like Riker’s, New York taxpayers could get a bit of a break. Overall, it is essential that New York legislators address this problem now in order to continue the great success in reducing mass incarceration. Furthermore, it is important to make changes as soon as possible so that no more people living in poverty have to be unfairly sent to jail. As the Human Rights Watch writes, “Poverty should not be an impediment to pretrial freedom.”[xii]

To create greater equality in pretrial cases and continue to lower the mass incarceration rates, I propose that New York State gets rid of virtually all utilizations of money bail and bail bonds. Instead, I recommend a system that requires defendants to complete non-financial requirements based on past criminal history and the cases presented by prosecutors and defense lawyers. This system will look at a wide variety of factors such as prior convictions and charges (such as drug possession or gun possession), prior interaction with courts, length of any jail time, and any illegal activity the defendant may be affiliated with. Each factor will be worth a certain amount of points. For example, if a defendant has had a previous conviction, that may grant them two points. After looking at each factor, the total amount of points will finally correlate with a general level of risk. Judges are able look at this analysis and pair it with the arguments presented at the arraignment to then decide if a defendant should be freed or taken into custody. Defendants who are granted permission to leave, however, are then required to complete other measures to ensure they attend their court dates. For example, a defendant may be required to wear a home monitor, return home at a certain hour each night, be subject to random drug testing, or be required to call the court regularly in the weeks leading up to the trial.[xiii]

Under this system, people would go to jail during pretrial based on the danger they present to society, not based on whether or not they are able to pay a certain amount of money. In State v. Habeeb Robinson, the NJ Supreme Court went further to ensure this process was just and ruled that the court could hold an individual pre-trial as long as the defendant had access to the evidence guiding the judge’s decision.[xiv] Essentially, it would help to eliminate the economic inequality the current bail system embodies and focus more on the crime itself. Additionally, this system would ensure that harmless people with minor offenses do not unnecessarily populate the state prisons. This, in turn, would help to further reduce New York’s incarceration rates, and help to decrease taxes, even if just a small amount.

Similar systems have been adopted in both New Jersey and the District of Columbia. In New Jersey, a computerized algorithm analyses similar factors based on three different categories: failure to appear, new criminal activity, and new violent criminal activity. After computing a raw score for each of these categories, the defendant is then rated on a scale from one to six, six being a high risk of violence or avoidance of court.[xv] If a defendant is on the higher side of the scale, he or she is taken into custody. If the defendant is on the lower side, they are released but may have similar restrictions as the ones presented above.[xvi] For New Jersey, this system has worked quite well. There have been a few instances where people have been released and have committed new crimes soon after, but for the most part the new system has provided a number of positive results.[xvii] For example, in June 2016, prior to passage of the bail reform, 8,332 defendants were detained prior to their trial. A year later in June 2017, after the new system was implemented, 5,717 defendants were detained.[xviii] This is a dramatic decrease in only a year. Along with this decrease in detainees, the system is balancing out to be divided between those who are dangerous and those who are not. Wealthy criminals are no longer being set free just because they have the money for bail, and poor and harmless people are no longer being jailed just because they don’t.[xix] Similarly, the District of Columbia has also done away with money bail and has also seen some success. In D.C.’s system, the judges look at the defendant’s criminal record and assesses whether or not the defendant will be a flight risk or commit another crime.[xx] This is called the “risk assessment” model and has enabled the district to detain mainly high-risk defendants. Furthermore, this model has been mostly successful in analyzing whether or not someone will appear for court: 88% of defendants do appear when required to.[xxi]

After looking at the models adopted by New Jersey and D.C., I would tweak a few areas where negative results have arose. Fundamentally, these systems pose limitations in that humans make errors and will not always analyze cases correctly. Along with this, it is possible that past charges and instances may be overlooked. For example, in the New Jersey PSA system, the algorithm does not look at past gun possession charges when calculating a risk score. This has resulted in released defendants committing gun crimes soon after their arraignment. Therefore, the system I am presenting would have to look into all past illegal activities. This includes drug possessions, gun possessions, DUI’s, and other offenses, all of which would be weighed based on the severity of their possible outcomes. Taking this further step would hopefully ensure that instances such as those in New Jersey do not happen. Both New Jersey and New York have similar crime indexes, racial makeup, and geographical location, making them a good pair of states to have this type of system.[xxii] If it has been successful in New Jersey, it is likely that is can be successful in New York.

Presumably, this policy change would receive widespread support from both lower and middle class individuals. As these citizens are the ones who are most affected by the current bail system, they would likely support any measures taken to reduce the inequality. Additionally, many politicians would be smart to support this policy change. Edward R. Tufte argues for a three-point theory in “Political Control of the Economy.” In his electoral-economic cycle theory, he argues that (1) economic changes shortly before an election can tip the balance, (2) electorates reward incumbents who provide them prosperity, and (3) that short-run growth preceding an election will benefit incumbents.[xxiii] If Tufte’s theory is correct, then you, Governor Cuomo, and the other legislators that are hoping to get re-elected in the 2018 elections should begin reforming the bail system as soon as possible. As stated before, the new system would decrease the demand for taxpayer money and would allow for this money to be put into other projects favored by taxpayers, or given back to them directly. On top of the economic benefits, you would have the support of a large number of lower and middle class constituents, helping to propel you into your third term as New York’s Governor.

While the loss of clients and business will inevitably cause backlash from the bail-bond industry, these bondsmen should not be prioritized over the everyday New Yorker. The bail-bond industry may propose that judges be able to impose bail for more serious cases in this new system. Under this alternative proposal, only serious crimes and not minor offenses could be asked to post bail, which would in turn keep the bail bondsmen in business and still keep the poor from going to jail unnecessarily.[xxiv] The biggest flaw to this proposal, however, is that it cannot ensure that wealthy criminals are detained. Under this proposal, violent criminals may be able to make bail through bail bonds or through their own cash flow. This is even more dangerous because bondsmen may take on clients that are simply able to provide them income, no matter how violent the crime. Thus, my proposal would be more successful in ensuring that criminals are detained until trial and would likely guarantee that both taxpayers and politicians receive their own personal benefit too.

Cash bail is an unequal component of our justice system that favors the rich and attacks the poor. By implementing a new system that eliminates cash bail and imposes a more cohesive analysis of the risk a defendant poses, New York can make great strides in its journey towards equality. You are likely to gain a fair amount of support for this policy change, as it will not only help the average tax payer, but it will help both lower and middle class citizens who are put in very difficult situations when they are unable to pay bail for a minor offense. There would be some negative implications of this policy change from the bail-bond industry, which could lead to lawsuits, as this has happened in New Jersey. However, the positive implications are that New York legislators, and yourself, will be putting yourselves in a good position for election season, tax payers will not be paying so much for correctional facilities, defendants with minor offenses will avoid unnecessary jail time while keeping their jobs and families, and New York will continue to lower incarceration rates. There are so many positives to implementing this policy that it is imperative New York makes this next step towards equality.


[i] “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” Human Rights Watch, December 2, 2010, https://www.hrw.org/report/2010/12/02/price-freedom/bail-and-pretrial-detention-low-income-nonfelony-defendants-new-york.

[ii] “Bail Bondsman,” Legal Information Institute, accessed November 20, 2017, https://www.law.cornell.edu/wex/bail_bondsman.

[iii] Tina Rosenberg, “Assisting the Poor to Make Bail Helps Everyone,” New York Times, November 15, 2017, https://www.nytimes.com/2017/11/15/opinion/bail-assistance-poverty.html.

[iv] Ibid.

[v] “Cash Bail’s Lonely Defender,” New York Times, August 25, 2017, https://www.nytimes.com/2017/08/25/opinion/cash-bails-lonely-defender.html.

[vi] Judith A. Greene and Vincent Schiraldi, “Better by Half: The New York City Story of Winning Large-Scale Decarceration while Increasing Public Safety,” Federal Sentencing Reporter, Vol. 29, No. 1 (University of California Press, 2016): 22, https://sites.hks.harvard.edu/ocpa/cms/files/criminal-justice/research-publications/fsr2901_04_greeneschiraldi.pdf.

[vii] Ibid.

[viii] “Total Inmates in New Jersey State Correctional Institutions and Satellite Units,” State Of New Jersey Department of Corrections, accessed November 20, 2017, http://www.state.nj.us/corrections/pdf/offender_statistics/2017/Total%20NJDOC%20Inmates%202017.pdf.

[ix] Tina Rosenberg, “Assisting the Poor to Make Bail Helps Everyone,” New York Times, November 15, 2017.

[x] Ibid.

[xi] Ibid.

[xii] “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” Human Rights Watch, December 2, 2010.

[xiii] John Schuppe, “Post Bail,” NBC News, August 22, 2017, https://www.nbcnews.com/specials/bail-reform.

[xiv] State of New Jersey v. Habeeb Robinson, No. A-1891-16T2, NJ, May 10, 2017.

[xv] “Public Safety Assessment: Risk Factors and Formula,” Laura and John Arnold Foundation, last modified 2016, http://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-Factors-and-Formula.pdf.

[xvi] John Schuppe, “Post Bail,” NBC News, last modified August 22, 2017.

[xvii] Ibid.

[xviii] Ibid.

[xix] Ibid.

[xx] Jason Flom and Inimai Chettiar, “Jailing the Poor and Releasing the Rich,” U.S. News, last modified October 19, 2016, https://www.usnews.com/opinion/civil-wars/articles/2016-10-19/its-time-for-states-to-abolish-money-bail-which-preys-on-the-poor.

[xxi] Ibid.

[xxii] “U.S. Crime Index State Rank,” USA.com, accessed November 20, 2017, http://www.usa.com/rank/us–crime-index–state-rank.htm?hl=&hlst=&wist=&yr=&dis=&sb=DESC&plow=&phigh=&ps=

[xxiii]Edward R. Tufte, Political Control of the Economy, (Princeton University Press, 1980), 9.

[xxiv] “Have bail reforms made us safer? Two views,” APP.com, last modified June 15, 2017, http://www.app.com/story/opinion/columnists/2017/06/15/bail-reforms-made-us-safer-two-views/102898838/

 

 

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