Bail Reform called for because of Kalief Browder suicide?

The political editor at the source uses this sad story as a powerful political tool to call for bail reform, essentially to “prompt the state [of New York] to completely overhaul its bail system.

Good political arguments frequently take a single case and extrapolate it to call for large reforms, programs, and taxes.  The story of what happened to Kalief Browder appears to be a tragic miscarriage of justice and likely a contributing factor to his suicide in May of this year. But is that really a good reason to implement radical bail reform? When they use the term ‘ bail reform,’ they usually mean eliminating bail bondsmen and the private bail system completely and replacing it with a taxpayer funded pre-trial supervision program.

That conclusion from this case simply does not stand up to scrutiny. Below you will find many of the excepts from the Observer.com article with my comments interspersed.

New York State’s Top Judge: Bail System ‘Totally Ass-Backwards in Every Respect’ 
By Jillian Jorgensen | 06/16/15 8:39pm

In a country where criminal defendants are innocent until proven guilty, Kalief Browder spent three years in jail awaiting trial on charges of stealing a backpack when he was 16, because he couldn’t afford bail. The charges were eventually dismissed and Browder, who was never convicted of anything but had served a lengthy sentence, was released. Earlier this month, he hanged himself.

Obviously, there is more to this story.  The Sixth Amendment to the United States Constitution guarantees the “right to a speedy trial.”  So the first question is, “What made this trial drag on SO long?

Then, Jorgensen says this,”Earlier this month, he hanged himself.”  Now that is tragic, of course. If he spent a full three years in jail, his release would have been in about May of 2013, his suicide about 2 years latter. What were the reasons for it? Maybe no one knows all of them. Should we assume that the only reason for his suicide was because we need bail reform? 

Evidently, according to Jorgensen. The article continues:

If that story doesn’t prompt the state to overhaul its bail system, advocates and legal professionals told the Observer, they don’t know what will.

“It’s so obvious that our bail system—excuse the expression—is totally ass-backwards in every respect,” New York State Chief Judge Jonathan Lippman said in a telephone interview.

Judge Lippman has been beating that drum for years—“crying in the wilderness,” as he put it—calling for reform of the state’s bail system in his State of the Judiciary address in early 2013. Albany has yet to act on Judge Lippman’s suggestions, and the State Legislature’s term has ended once again—though lawmakers are scrambling to deal with other issues in a special session—without action …

Bail is not designed to punish someone, as those subject to bail have not yet been convicted—the only goal of it, under New York law, is to ensure a criminal defendant appears in court.

To insure that a criminal defendant appears in court is only one of the main purposes of bail.  Bail also does something very important that few bail reform advocates talk about.  It provides the money needed to enforce the law.

When a defendant fails to appear in court, someone must enforce the order, find the ‘skip’ and bring them back so that justice can be served and the community protected. That will either be the police, sheriffs or federal marshals in the jurisdiction – at the expense of taxpayers – or it will be paid for by the defendant or friends/family of the defendant because they voluntarily sign the bail contract. If it’s the latter, the costs are paid by private parties who agree to do it. (Of course one of the main differences between liberal ideology and conservative (and certainly libertarian) thinking is that the latter generally believe many, if not most, government services could be more economically, efficiently and morally performed by contractual relationships with private persons and companies.)

The article then points out a real problem…

Unlike the vast majority of states, New York does not allow a judge to take into account whether a defendant is dangerous, something Judge Lippman deemed “ridiculous” and said leaves room for some dangerous offenders with cash to go free while poor, nonviolent defendants languish in jail. Judge Lippman, and others, are pushing to change to that—and see momentum in the wake of tragedy.

If true, Judge Lippman is right on the above point. NY may need at least some bail reform. According to the legal encyclopedia at Nolo.com, most bail guidelines and bail schedules do take ‘danger’ into consideration, “The more serious and dangerous the crime, the higher the amount of bail is likely to be.”  Danger to the community should always be considered in setting the amount of bail or even denying it in extreme cases.

Next, Jorgensen gets dramatic:

“You have people who can’t make $500 bail who end up rotting in jails or prison, losing their jobs, being separated from their families, while they are absolutely no threat to anyone.

. . . 

Words are powerful. “Rotting” is a very graphic description that implies a very LONG time. That should rarely be and in my experience rarely is, the case in our country. Even those defendants on minor, nonviolent criminal charges get their trial and case finalized within a couple of months, not years, even if they can’t get out on bond.

But, is money usually the only reason they can’t get out?

Browder was held at Rikers Island so long because his family could not afford the $3,000 bail that had been set for his release. He repeatedly refused to take plea deals, insisting he was innocent. He endured beatings and more than a year spent in solitary confinement before Bronx prosecutors eventually dropped the charges after losing track of their only witness.

“Someone can be fairly low-risk and accused of a fairly low crime, but bail is set, they set what they believe to be a low bail—but if you don’t have any money, a low bail is as good as no bail,” Nancy Fishman, project director of the Center on Sentencing and Corrections at the Vera Institute for Justice, told the Observer.

Bail bonds businesses are unlikely to help someone post a low bail, since the businesses make their profits by taking a percentage—and there’s little for them to earn with lower amounts, Judge Lippman noted. He’s proposed changing the state law to hold only those people considered a danger to the community or who are unlikely to return to court, with room for monitoring some defendants.

Browder’s treatment while in Rikers is also tragic. But jail conditions are of course a separate problem unrelated to whether bail reform is needed or not.

This article says that his bail amount was set at $3000. The article here says, “Browder’s family couldn’t make the $10,000 bail…”  It is true that bondsmen work for a premium that is usually about 10% of the bond amount.  That would make the fee to bond him out between $300 at the low end and $1000 at the upper end. But they frequent make bail even easier to access. There are many bondsmen who will post the full amount of the bond with only 50%, or sometimes even less, of the premium as a down payment, then they accept a payment plan for the balance.  In Browder’s case, he could have gotten released for as little as $150 to $500.

That begs the question, “In three long years, could Browder’s family and friends not scrape up $150 to $500 to rescue him?” I would think so, if they thought he deserved it? Or again, is there a lot more to this story that is not being told.

. . .

“The only reason they’re in [jail] is because they’re poor, basically. 

Only reason?  More often, there simply is no one that knows the defendant who is willing to serve as an indemnitor (guarantor/cosigner). They know the person too well and either don’t trust them or have bailed them out before and are sick of it. But occasionally, money may be the sole reason. Judges most often do have the discretion to and frequently do let people out on personal recognizance (PR) bonds, which essentially are just a promise to appear,  no money required at all, as the article goes on to say:

In New York City, only 14 percent of defendants are held on bail, according to the city. The vast majority of those charged with misdemeanors, 79 percent, are released without bail.

Mayor Bill de Blasio has yet to lend his support to the bail fund. But his Criminal Justice Director Elizabeth Glazer struck a skeptical note about the entire notion of money bail.

“Money bail is cause for concern. While most defendants in New York City are released at arraignment without bail, it is still unacceptable for the size of one’s bank account—and not the risk they pose—to determine whether an individual is in jail or with their family while waiting for trial,” Ms. Glazer said in a statement to the Observer.

To that end, she said the city is “tripling” the number of people who can take part in a supervised release program—allowing them to remain free, without posting any money, but subjecting them to close monitoring. The city expects to have 3,000 people under supervised release this fall.

Who pays for this service? Innocent taxpayers, of course. Is that something you would volunteer for when the private bail bonds industry could do it better and cheaper at the expense of the accused and family/friends who volunteer to pay a small percentage of the bail to a willing bail bondsman?

Ms. Fishman said there’s little research showing that people who pay bail are any more likely to appear in court than those who do not.

Not true. An opponent to an effort to restore private bail to Wisconsin, one of “only two or four states* that doesn’t have bail bonds right now,” admits, “various studies of local municipalities show lower no-show rates for private bail” than for the non-financial based system used in Wisconsin now.

An impressive study entitled “Public versus Private Law Enforcement: Evidence from Bail Jumping” states this in it’s conclusion:

Defendants released on surety bond are 28 percent less likely to fail to appear than
similar defendants released on their own recognizance and if they do fail to appear they
are 53 percent less likely to remain at large for extended periods of time

Judge Lippman offers his opinion that New York ought not wait to implement bail reform:

“Let’s not wait until another young person is left without a life before we act again. The only time that we focus on these things is when you have a terrible tragedy. That is just not the way that we should be as public officials conducting ourselves,” Judge Lippman said. “There is an urgency to do that before more people lose the [sic] lives and on top of it, on top of it [sic], New York, the public safety is at risk.”

Read more at http://observer.com/2015/06/a-push-to-reform-backwards-bail-system-after-kalief-browders-death/#ixzz3dLvcB7Iw

Yes.  New York can probably could and should do better. But never should we use a tragic event to create legislation that will likely only make things worse and add burden to our already overburdened taxpayers.  Clearly, while the determination of who should get bail and how much it should be should always be considered closely, private bail systems and privately paid bail bondsmen have long had an important and effective place in our country’s legal system.

See also this discussion of the effectiveness and even morality of ‘bail reform’ that states, “this form of taxpayer funded pretrial justice is not justice at all but rather a potential civil rights nightmare that presumes guilt before innocence.”– http://www.expertbail.com/resources/bail-industry-news/public-sector-pretrial-justice-guilty-until-proven-innocent

*Wisconsin, Illinois, Oregon and Kentucky are the only States that bar private bail.

 

Author: James Bondsman is bail bondsman in Richmond, VA and is passionate about helping people understand the real problems with what is call “bail reform.” He is also the editor of BailBondsCompanyDirectory.com.