Penalties for individuals unable to fund bail when arraigned in court go far beyond sitting in jail until trial. People can lose their jobs when they miss work because they’re detained; their sons and daughters can get left behind at school or daycare. Being unable to make bail can also mean death, which is what happened in the tragic cases of Kalief Browder and Jeffrey Pendleton, two young, African-American men. Each was held in, and died in, jail because they were unable to post bail.
A large part of the overall problem is that the bail system still operates almost exclusively in cash in an era where many financial transactions are made through credit or debit cards or apps.
New York City has been taking steps to fix these bail problems since last fall, spurred by Browder’s death. Mayor Bill de Blasio’s Office of Criminal Justice launched the online site Bail Lab in October to field ideas on how to reform the bail system. After reviewing ideas from that hub, de Blasio announced on Friday three new initiatives aimed at solving these problems. From the press release:
- Securing ATMs for all criminal courthouses. New ATMs will be installed in three additional courthouses, ensuring access in every criminal court across the City. Often, defendants are brought to the courthouse during late night or early morning hours when few options exist to withdraw funds for bail payment. Inability to access cash and pay bail directly after arraignment can mean transfer to Rikers Island.
- Releasing a comprehensive “User Guide to Paying Bail.” For the first time, New Yorkers will be able to access comprehensive, easy-to-understand information about bail payment online at the Bail Lab website, in informational packets given to families at arraignment, and via the New York City 311 website. Among other resources, this guide includes information on how to access the Department of Correction web portal that allows the transfer of funds to an inmate, how bail gets refunded, and how to file a complaint against a commercial bail bondsman if an individual feels they have been charged an excessive fee.
- Exploring options to pay bail using a credit card. The City is currently working with the State’s Office of Court Administration to assess options for a defendant to pay his or her own bail with a credit or debit card.
These proposals come on top of a number of other ideas from the Bail Lab that have been set in motion. As of March, judges across the city can now release defendants to their homes, under supervision, if they’ve been determined a low-risk for skipping their court proceedings. New York is also currently one of four states that forbids judges from assessing a defendant’s threat to public safety when determining bail amounts. De Blasio’s office is now working to change state law so that judges have more discretion in this area. The New York City Council is also working on developing a citywide bail fund.
All of these are welcome steps for helping people of meager resources navigate a criminal justice system that is, as the Pretrial Justice Institute Executive Director Cherise Fanno Burdeen puts it, “a maze with too many entrances and too few exits.”
Writing for The Atlantic last month, Burdeen pointed to examples of other cities that are employing a more just bail system:
Many jurisdictions already know how to replace outdated pretrial justice policies like cash bail with risk-based systems that are safer, fairer, and more effective. The District of Columbia instituted reforms in the 1990s that effectively replaced cash bail with a pretrial risk-assessment program that evaluates which defendants are too risky to be released. The highly effective program doesn’t demand cash bail; instead defendants are assessed for their likelihood to appear for their trial and potential impact on public safety. Most defendants are released on their own recognizance or under minimal supervision, and only about 15 percent of defendants are held in jail. D.C.’s model has an 89 percent court appearance rate, which is comparable to what is seen elsewhere under cash bail. The model is being adopted in a growing list of other jurisdictions, including, mostly recently, the state of New Jersey.
There’s still the problem of judges failing to consider an individual’s income when setting bail—an issue that allows many wealthy defendants to go free while low-income defendants are left languishing in jail. The U.S. Department of Justice sent out letters to courts across the country advising them to take defendants’ incomes into consideration when assessing bail.
“Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release,” reads the letter.
“Thousands of presumptively innocent New Yorkers are imprisoned each year solely for their inability to afford bail,” said Peter Goldberg, the executive director of the Brooklyn Community Bail Fund, in a press release about New York City’s new bail reforms. “A complete overhaul of this system is required.”