The Price of Freedom Part 2: Why Bail Reform Was Needed

In early December 1975, the Amsterdam News published a front page story about a “revolt” on Rikers Island that ended peacefully after hours of negotiations involving a federal judge, the Bronx district attorney, and the corrections commissioner, among other officials. 

“Inmates in the House of Detention for Men [HDM] on Rikers Island seized control of their cell area protesting the inhumane treatment received at the correction facility,” the article began, going to explain that after the 17-hour revolt came to an end, 200 correction officers engaged in a four-hour wildcat strike.

“Both inmates and guards agree that conditions at HDM are unbearable…. Overcrowding [and]  poor living conditions and treatment touched off the uprising among the 1,816 inmates. Overwork and understaffing caused the guards to stage their protest,” the article continued.

Jam-packed facilities, lack of timely medical care, violence, and deaths have all been part of what has for decades made Rikers Island a destination to be avoided at any cost. But as horrific as Rikers and other jails are, the need for such facilities exists in part because so many people held in pretrial detention are unable to afford bail—sometimes set at just a few hundred dollars.

Safety at Any Price

It was this dichotomy—those of means were often released and those who were poor mostly remained locked up—that pushed advocates to champion bail reform. Bail, and pretrial detention for those who could not afford it, has often been presented by public safety hawks as a way to keep the public safe, but the statistics tell a different story.

For the low-level misdemeanor and nonviolent felony crimes that would be covered by the 2019 bail reform law in New York, those that were held in pretrial detention because they could not make bail spent relatively little time behind bars—just 60.8 days, according to experts at John Jay College of Criminal Justice. This is mainly because their cases were almost always resolved quickly, after which they were then released. So before bail reform was enacted, these allegedly dangerous criminals were, in fact, often back on the street quickly; but the impact of their time behind bars could be profound.

“Say, for example, somebody’s detained pretrial. As a result, they miss some shifts at work, and their boss fires them. So, now they’re released, even if it’s just a few days later, from pretrial detention, and they have no job and while they were in jail, they may or may not have met someone who told them, ‘There’s other streams of income; I can help you with that’,” said René Ropac, a senior research associate at the Data Collaborative for Justice (DCJ). 

He spoke about the “criminogenic effect” that being in jail or prison has: that simply being in jail, even for a short amount of time, can lead to a measurable increase in the likelihood that you will commit future crimes.

His colleague Michael Rempel, director of the DCJ, expanded on this idea.

“It is not as though setting bail incapacitates people for extremely long periods of time. The average was still only two months, which in a lot of these cases, is enough experience in jail to have harmful effects once they are released. But it’s not really enough time to take them off the streets and prevent the arrest simply by virtue of incarcerating them,” he said.

D’juan Collins is a leader of Voices Of Community Activists & Leaders (VOCAL-NY), a grassroots, community-based organization which advocates for those impacted by mass incarceration among other issues. Over 15 years ago, he experienced the impact of pretrial detention in New York first hand.

“I lost my son Isaiah to the foster care system as a result of [my] 2007 arrest for an alleged drug sale and criminal possession of a controlled substance … while I was a single parent,” he told the AmNews. He could not afford the bail that was set and as a result lost custody of his son.

If bail reform had been in place at the time, he said, “I would have been able to care for my son and make arrangements to place him with his family in Chicago while my criminal case was pending in Manhattan.” 

The impact of his pretrial detention, and how it fosters crime, is now multigenerational, continuing to impact his son.

“Well, to my knowledge, he’s now in a gang. He doesn’t want anything to do with me. He believes that his family abandoned him, because the foster parent … brainwashed my son to believe that his family didn’t love him. And the system helped with that,” Collins said, holding back tears.

Eileen Maher spent more than a year on Rikers Island in pretrial detention because she could not afford bail. She ended up losing her dog-walking business as well as her apartment while in custody.

“I knew that if I had gotten out on bail that I would have had a better chance of fighting my case,” she said, describing her time at Rikers as “absolutely dehumanizing… The longer I was there, the more I felt I was gonna become unhinged soon. I really did need to go home. And no one was helping me. So the only way I could get out of that situation was to take a plea and get home myself.” 

That plea agreement and the criminal record that follows her continue to impact her life. After finding a job, she said she was let go after just a year when she says her employer learned of her time in jail.

“I was fired because of my criminal record. When I explained to them what happened, that I had been a criminalized survivor of domestic violence, that I had been stuck on the island … they said, ‘Innocent people don’t go to prison. They don’t take pleas, if you really didn’t do it, you wouldn’t have pled guilty.’” 

Without a Chance

“If you are locked up awaiting trial, you have much less access to your attorney, you are dealing with the horrors of prison life, you often have medical problems that are not being addressed. It makes you very cynical about the whole system,” said Jed Rakoff, a sitting U.S. district judge in the Southern District of New York.

“Of the 2 million people [held across America in detention], several hundred thousand are people who are awaiting trial. And almost all of them are going to wind up pleading guilty, even those that are innocent. So [while] bail is an aspect of that, the bigger problem is mass incarceration,” he added.

Defense attorney Masai Lord puts it in equally stark terms: “When you have people with no criminal records … of course, they’re terrified of going to jail, they’re going to plead guilty to something very often that can have life-altering consequences. And they get a few minutes to decide. 

“And they’re doing it because they’re terrified of going to Rikers and bail being set. And at least the one thing that bail reform did was to remove that… I don’t have to plead guilty to something I didn’t do as a way of avoiding going to Rikers Island and being in jail the entire time while I’m trying to fight my case,” he added. 

Masai said that he has had clients who were innocent but pleaded guilty simply to avoid, or get out of, Rikers. He also had two clients who remained on the island and maintained their innocence, going to trial.

“We won both the trials, both of them were found not guilty and acquitted. And then you get this question where people spend five, six, seven, months in jail, on false charges and they can’t get anything for that, because they say, ‘Oh, there was probable cause for the arrest.’ So, therefore, we just took away six months of your life, seven months of your life, for a crime you said that you didn’t commit. And there’s no recourse, you get nothing. And the system’s allowed to do that and repeat that,” he said.

Tilting the Scales of Justice

“No one should be pleading guilty simply because they want to go home,” said Scott Hechinger, founder and director of Zealous, a nonprofit that supports state and local public defenders. “And simply because they’re fearing the violence that they’re facing on the inside of jail, because they can’t afford to pay their bail.”

“Pretrial detention perverts a system of justice.”

Katie Schaffer, director of advocacy and organizing at the Center for Community Alternatives

He also noted the profound impact that pretrial detention has on our society.

“It doesn’t just hurt people, it actually silences truth and forces guilty pleas,” he said. “95% of convictions in the United States come from guilty pleas and a major reason for that is pleading guilty to go home or to get less time, to plead down from a more serious offense, whether or not the person is innocent or guilty, whether or not the person has been stopped and frisked or unconstitutionally or subjected to other police misconduct,” he added.

“Pretrial detention perverts a system of justice. So when people are incarcerated pretrial, they are far more likely to take a guilty plea. And you can understand why that, particularly in lower-level cases, prosecutors will often come to people and say, ‘If you take this plea, I’ll give you time served and you can go home tomorrow,’ and then people end up with permanent records, and it ends up fueling this system that is not interested in truth, but is instead a sort of conveyor belt of convictions,” Katie Schaffer, director of advocacy and organizing at the Center for Community Alternatives, said in an interview. 

“98 % of convictions in New York state come through guilty pleas, not through trial. And that’s because of a constellation of laws and policies. But an important part of that is about pretrial incarceration,” she added.

“There’s no real cost to judges and prosecutors for locking people up pretrial. So, let’s say you’ve got 100 people, statistically speaking, only five of them are going to reoffend. From the judges standpoint, there’s no cost and [they] say, ‘Well, I’m just gonna, you know, all 100 of you are gonna stay locked up. And then that way, none of you will reoffend and I won’t look bad’,” said Clark Neily, Cato Institute senior vice president for legal studies. 

“But then you’ve got 95 people who were no risk to the community and no particular flight risk being locked up before trial for no reason, simply because we couldn’t figure out … which subset of those people would actually have run off, or would have victimized somebody if they were allowed to be released pretrial,” he added.

This is an idea that retired U.S. District Court Judge Shira Scheindlin rejects.

“I think each case that comes before you stands alone. I don’t think you’re looking at the big picture and assessing the risks on the one hand of detaining a person who shouldn’t be detained versus the risk of releasing somebody and then having them commit a crime and feeling terribly responsible,” she said of the way that judges consider whether to set bail. “I think you look at each case, all by itself, one at a time. And if you’re honest, you do your very best to make the right call.”

Despite what the Constitution might say or what the foundations of our legal system might indicate, America has for decades been increasing the percentage of citizens it detains before they are convicted of a crime.

“When I was practicing as a public defender, something close to 90% of the people who I represented weren’t able to afford the bail that was actually set,” said Hechinger. “So, the result of this is that in the United States, in addition to [this being] the most incarcerated society in the history of the world, but also a quarter of those who are currently incarcerated are there pretrial, presumed innocent on unaffordable bail, incarcerated solely because they don’t have enough money to buy their freedom.”

This is what bail reform in New York was supposed to address. But that argument about presumption of freedom ran headlong into a pandemic increase in crime for which bail reform became a scapegoat. Nearly as soon as it was passed, efforts were made to roll back those reforms. 

In the third and final part of our series we will dive deep into the data, which 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.