The report of the Independent Commission on New York City Criminal Justice and Incarceration Reform, entitled “A More Just New York City,” should be commended for an excellent analysis of our criminal justice system and the ineffective use of our jails, for solid, compelling arguments on why Rikers Island Jail should be closed and, more importantly, for addressing our archaic bail system that clearly hurts poor defendants.
Advocates and lawyers from district attorney offices and criminal justice organizations around the country have begun to organize around this issue and are proposing alternative criminal justice reforms. These reforms to current policies focus on nonviolent defendants who are charged with misdemeanor offenses and who pose no flight of risk.
According to the Commission report, in 2016, 249,776 criminal cases were arraigned in New York City—82 percent on misdemeanor charges and 18 percent on felony charges—and 90 percent of the detained defendants charged with misdemeanor offenses were considered minimal to moderate risk. The report also indicates that nearly half of these misdemeanors were resolved at arraignment. The status of the remaining defendants was left to judges, who through oral arguments, determined whether to release the defendants on their own recognizance or set bail.
In New York State and across the country, the bail system ensures that defendants return to their court appearances. Today, more than 95 percent of defendants return to court for their appearance.
Bail bonds companies, for many years, have continued to profit from a system that preys on poor, minority young men who comprise the majority of those arrested. Here is where the situation becomes challenging and frustrating. By law, bail should be based on the financial resources of the defendant pursuant to the current bail statues. However, the financial circumstances of the defendants are seldom taken into consideration when bail amounts are being determined. If the judge decides to set an unreasonable bail for these low -level offenses, many of these defendants cannot afford to post bail and more than 45,000 of them end up spending unnecessary time on Rikers Island.
Further, the NYC Bail Statute provides for nine different forms of bail, but within the five boroughs, what is offered to defendants and their families are cash bail and the traditional insurance bond that requires 10 percent of the bail amount. This practice clearly presents a financial hardship for this population, which is usually poor or working poor. More than 80 percent of these families cannot make afford to post bail
For years no one has pressured the Legislature or the governor to reform the current practice. But in light of the recent suicide of Kalief Browder, arrested at 16 for allegedly stealing a book bag, a crime he claimed he did not commit, the issue has become a hot topic for community leaders and clergy members, who often accompany the defendants’ parents to court arraignments and bail hearings. Browder sat in a Rikers Island cell without a trial and had to endure the abuse of other inmates and guards because his mother could not afford to post the bail of $3000. He committed suicide after serving three years on Rikers Island.
Browder’s case and the harmful practices resulting from an archaic bail system have caused community leaders and clergy to organize around the issue and push their elected officials to reform the system. At a recent community forum in Brooklyn for the race for the Brooklyn district attorney’s seat, community members and voters demanded the candidates explain their positions on how they would work to eliminate the current cash bail practices. They further asked each candidate to provide specific examples on what administrative policies they would put in place to reduce the number of nonviolent offenders who cannot post bail and end up on Rikers Island.
The Obama administration criticized the current cash bail system in many states, and several federal courts are hearing cases challenging the constitutionality of several bail statutes.
In the U.S. Senate, Senator Kamala Harris, a Democrat, and Senator Rand Paul, a Republican, are working on a joint bill to address the current bail practice.
In Albany, several legislators are also working on a number of bills to reform the current outdated law.
Last year, the mayor’s office did move forward in announcing a new bail reform for the NYC court system whereby individuals charged with nonviolent crimes and misdemeanor offenses would be placed in supervised release programs and avoid the possibility of being sent to Rikers Island. However, the program only has capacity for a little more than 3000 defendants a year, citywide. Judges would still have the authority and the discretion to place individuals in the supervised release program or in a Rikers Island cell.
Research has shown that a sizable percentage of NYC prisoners list their home addresses from the neighborhoods of South Bronx, Brownsville, East New York, Harlem and Bed-Stuyvesant. Based on the 2010 census data, many families in these neighborhoods are living below the poverty level. Most of these communities are already dealing with failing schools, high dropout rates and high unemployment. They are scarce in resources and residents rely heavily on social programs to make ends meet.
Clearly the current bail system only serves to further place these defendants and their families in a deeper financial hole as they try to post bail while also struggling to make rent payments and meet other basic needs. This problem is even more exacerbating when a defendant could have been released on his own recognizant. Instead the defendant is detained on Rikers Island while waiting to post bail for a misdemeanor offense and is placed in a population with inmates who are violent offenders or who are charged with felony crimes. Thus, defendants charged with misdemeanors are more likely to face the same harsh conditions Kalief Browder encountered, simply because they cannot afford to post bail.
What is needed is a comprehensive economic development plan that would foster economic growth and realistic opportunities for ex-offenders, particularly for those between the ages of 17 and 25. This population is faced with limited to no opportunities and have all but given up on achieving the American Dream through legal means.
Yes, it all boils down to our elected officials working together to eliminate the social ills that continue to plague these disenfranchised communities where most offenders reside.
It is time to empower these communities with programmatic initiatives that strengthen educational programs and create pathways to job training programs. One major initiative might include apprenticeship programs for those who are not interested in pursuing a college degree but are interested in a trade. These initiatives and investments would foster real change and perhaps substantially reduce the number of young people who become involved in criminal activity because they view it as the only available option for survival.
The mayor’s current universal prekindergarten program is an example of early investment in our children, our communities and in our city as a whole. I am sure that in years to come we will see the benefit. And education should be a top priority. Eliminating failing schools in underserved communities and providing funding to raise the performance level in every school district should be a major focus.
In April, Governor Cuomo announced a $1.4 billion “Vital Brooklyn” initiative to transform Central Brooklyn. The plan will target and invest in eight integrated areas, creating a new model for community development and wellness. Part of the initiative will address the systemic violence and entrenched poverty in high-need communities. The plan will add 7,600 new hires through the Brooklyn Strike Force program, provide NYCHA youth with higher paying jobs and train 1,200 people in construction trades.
With the current public policy agenda in Washington, it’s going to take a collaborative effort of the city and state working together with advocates and community leaders to bring about real bail and economic reform.
Gregorio Mayers is an assistant professor in the Department of Public Administration at Medgar Evers College/CUNY, a board member of Brooklyn Legal Services Corporation and former senior adviser to former New York City Mayor Michael Bloomberg.