The Price of Freedom Part 1: How Bail Became A Way to Jail the Poor

Sitting like a sentinel at the throat of the East River, Rikers Island has had many lives since it was first purchased by Dutch immigrant Abraham Rycken in the 1600s. After New York City bought the island, which was then less than 90 acres, it served as training grounds for the 9th New York Infantry during the Civil War and later became a dumping ground for the city’s ashes and garbage. 

Only in the 1930s did it start the transformation to become the jail that today houses more than 5,000 people, 90% of whom are being held in pre-trial detention, meaning that they have not been convicted of any crime and are awaiting trial.

Nearly 20% of those held at Rikers have been there between six months and one year; 14% have been held one to two years, and 8% (or nearly 500 people), have been detained at Rikers for more than two years. 

But who gets held at Rikers and other jails around the country and why? For many less serious charges for alleged crimes, which the system classifies as misdemeanors, it comes down to cold, hard cash—or the lack of it. 

In the U.S., when someone is charged with a crime, judges often have the power to set them free while they await trial or have them held if they fear they will not return to court. But for centuries a third option has existed: bail. 

Instead of simply promising to come back to court, the accused, or someone on their behalf, can put up money as a way to incentivize their return. If the accused fails to appear, the money may be forfeited. 

So, if the accused is wealthy, or can find someone to post bail, the accused goes free. But if you don’t have the money to bail yourself out, you can be held until you have been convicted or found innocent—a process that can take years in some cases.

And the fact that those with means go free and those without are held in jail has prompted activists and advocates to push for bail reform for years.

“People have been advocating for reform for two reasons. One, it feels unfair when [there’s] someone who can pay their bail and another person can’t. It’s unfair that there’s a wealth-based component to it,” said Jullian Harris-Calvin of the Vera Institute of Justice, a nonprofit that advocates for changes to the carceral system.

Harris-Calvin said that she and her colleagues “saw that the racial disparities that existed in our pretrial justice system when it comes to pretrial incarceration were dramatic.” According to a report from the Center for Justice Innovation, in 2019 “in violent felony cases, judges set bail or remand for 66% of Black, 64% of Hispanic/Latinx, and 55% of white defendants.” 

In 2019, after years of struggle, bail reform was passed in New York State, but in the lead up to the bill’s passage, and immediately afterward, bail reform was blamed for the increasing amount of crime in some categories. 

In January 2019 the AmNews reported:

“They did not ask a single judge, a single district attorney, a single police chief in the state to comment on this most significant criminal justice reform in the history of New York,” said former NYPD Commissioner Bill Bratton on “The Cats Roundtable” radio show with John Catsimatidis on AM 970 this Sunday. “And now we are left to pick up the debris that it’s going to create.” Bratton called the new bail reform law a “disgrace” and asked, “What the hell were they thinking about in Albany when they crafted this mind-boggling set of limitations on the criminal justice system?”

The mayor said that he and the City Council should take a look at revisions to the legislation. After a meeting with members of the city’s Jewish community regarding recent anti-Semitic hate crimes, de Blasio agreed that changes should be made.

“They did some very good reforms, but there’s also things that need to be done, particularly empowering judges to determine if someone poses a threat to the surrounding community and giving judges the power to act on that,” said de Blasio to reporters.

Several years later, the data, which we will explore in detail in part three of our series, show that far from increasing crime, those who remain free through bail reform are actually less likely to be arrested again than those who remained in jail. 

But how did America even get to a system that rewards the affluent and punishes the poor? The roots of bail are older than the American legal system itself.

Cash Rules Everything Around Thee

The history of cash bail “like a great deal in our Constitution, goes back to English history. And there was a long history of English kings, in effect, extorting money from barons, and other rich folk through various improper means,” said Jed Rakoff, a sitting U.S. district judge in the Southern District of New York, in an interview with the AmNews. Rakoff, a legal scholar, is also the author of “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System.”

More thoughtful professor than stern federal jurist, Rakoff said that the tradition of English kings ripping off the nobility led to the creation of the Magna Carta, which for the first time set forth actual laws even bound to by royalty, and upon which our own legal tradition rests.

“But the Kings didn’t give up,” he continued. “They tried other ways to get money and one way was by having barons and others arrested, and then setting a very, very high bail, an excessive amount of money, which they could then forfeit to the crown under certain circumstances.”

So, bail began as a form of coercion by the state, and many advocates argue that it still is. By the time the American Revolution was building up steam, the British crown had perfected bail as a form of punishment.

“In the years just before the American Revolution, there was a practice of locking up people who were revolutionaries by setting excessive bail,” Rakoff said. The crown would set excessive bail “even if the underlying charges were ultimately dropped…In the meantime, the poor guy would be stuck in jail because he couldn’t afford the bail. Or if he could afford the bail, it was because he was a rich guy, and then the king would take that money.”

The inclusion of bail in the Bill of Rights is a clear reaction to the perceived mistreatment by the crown. The Eighth Amendment states: 

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

But like so much in the Constitution, the understanding of “excessive” has both changed over time and, from the perspective of those advocating for bail reform, seemingly been ignored by the courts altogether.

Staying Put and Pleading Guilty

“The excessive bail clause has not received clear interpretation by the U.S. Supreme Court,” said Duke University law professor and legal scholar Brandon L. Garrett in an interview.  

“And in practice bonds that people cannot afford [are] routinely used as a tool for detaining people. And so the entire goal of setting bonds in many situations is to set an unaffordable bond, precisely to detain a person,” he added.

Prosecutors, like every other member of our legal system, are sworn to uphold justice, not simply seek convictions. But if prosecutors were truly interested in justice, advocates say, they wouldn’t use unaffordable bail to influence the outcome of a case.

“When you’re held pretrial, you are more likely to actually plead guilty because of the inherent coercive effect of incarceration [and] you are more likely to have a higher sentence,” said the Vera Institute’s Harris-Calvin. 

“Also, there are other consequences, such as loss of employment, loss of education, loss of custody of your children, [and] loss of housing, which are all things that folks who are poorer Americans are more susceptible to anyway—but particularly once you are incarcerated pretrial.”

When someone has been locked up for days, weeks or months, the need to escape the horrific conditions in a place like Rikers can trump the desire to go to trial to prove the person’s innocence.

“Someone gets arrested. They can’t make bail. They’re in jail for a week or two, or maybe a couple of months or even longer. A prosecutor comes along and says, ‘Look, if you’ll just plead guilty we’ll take the conviction, and you can get out today.’ Every criminal defense attorney I’ve talked to says that every single client I’ve ever represented takes that deal whether they’re guilty or innocent,” Cato Institute senior vice president for legal studies Clark Neily told the AmNews.

“We don’t know what percentage of people who have been induced to plead guilty were in fact innocent. We know it’s greater than zero,” he added.

Retired U.S. District Court Judge Shira Scheindlin presided over the trial that determined the unconstitutionality of NYPD’s stop and frisk policy, and spoke about why an innocent person held in jail would plead guilty to a crime the person did not commit.

“Whatever it takes, I want out of here,” she said, describing the mentality of someone held in Rikers. “It plays into bail in the sense that you incarcerate somebody, and they’re in shock and after weeks or months, [they say] ‘OK, you want me to plead guilty, I’ll say I did it. I’ll plead guilty. I’m not guilty, but I gotta move on.’ And they plead guilty. Just to get out of pretrial detention.” 

Scheindlin added, “From what I understand, being thrown into Rikers, if you’re 18 years old, is a hellhole and [there’s] a great risk of being beaten up by other prisoners [or] being beaten up by guards. There’s a lot of abuse there. So, of course, you’re gonna do anything, anything to stop that, including pleading guilty when you’re innocent.”  

This is something that defense attorneys say prosecutors are well aware of when they ask for bail.

“Pretrial detention is supposed to be a method where someone may not come back to court to keep them in custody of the government. It doesn’t have to be a place where people are tortured and people are raped, people are stabbed and people are murdered,” said Brooklyn-based defense attorney Masai Lord. “And, so, if someone says, ‘Well, I don’t want to be sexually assaulted, so I’m going to plead guilty.’ How am I supposed to say, ‘No’?” 

He went on to add, “The best way to get people to plead guilty is to put them in a place like Rikers Island. And I think everyone involved understands that.”

Out of Tragedy Comes Reform

It was against this backdrop that advocates of bail reform toiled for years. In 2019, reform began to move forward in Albany, four years after the death of Kalief Brower. He committed suicide after he was held at Rikers for more three years, much of the time in solitary confinement, because his family could not pay the $3,000 bail required, though he was eventually released after the charges against him were dropped. After the publicity around his death, the city banned solitary confinement for those under 21, and in 2019 reached a $3.3 million settlement with his family.

“I think his story really helped people who aren’t already attuned to this see exactly how oppressive and harmful our pretrial justice system is, particularly when it comes to bail. And so having that story and people empathizing with that, and then marrying that with the data that supports the need to reform bail helped get this movement kind of over the line, and get our bail reform passed in 2019,” said Harris-Calvin.

Not without controversy, the reforms faced an uphill struggle in Albany but finally passed in April 2019. The reforms were in many ways a revolution in the cash bail system in New York. 

“Almost all misdemeanors became ineligible for bail, meaning the judge could not hold that person pretrial. The judge could give that person what is called conditions of release, so they might have to report to a pretrial services officer, have to do drug treatment, mental health screening and treatment curfew, electronic monitoring,” and other conditions, Harris-Calvin said.  

Bail reform also included provisions that encouraged judges to set conditions other than bail to ensure that the accused is getting the needed services that will help ensure that the person returns to court. 

The reforms coincided with the COVID pandemic, which had a dramatic impact in lowering the numbers of those held in New York’s jails. An early report from the Center for Justice Innovation examining the impact of bail reform said that in 2020 “ resulting from new restrictions on the use of bail and pretrial detention, judges ordered bail or remand significantly less often for all racial/ethnic groups.”

“Statewide, our jail population fell by over 30% within a year,” said Harris-Calvin. “When we look at racial disparities, that meant thousands more Black and brown New Yorkers were not being held pretrial simply because they were too poor to pay their way out.” 

But these advances were soon overshadowed by a spike in crime during the COVID-19 pandemic. Opponents of bail reform used the increase to claim that this reform was at the heart of a threat to public safety, a claim the data would later refute.

In part two of our series we will explore the stories of those held in pretrial detention because they could not afford bail as well as how this form of incarceration can actually lead to more crime.

In part three we will dive deep into the data that shows the success of bail reform in New York as well as in Houston, where bail reform happened even earlier.

This series was made possible with the support of a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights in conjunction with Arnold Ventures. Editing support was provided by Type Investigations.