TOO MANY PEOPLE ARE JAILED WHO DID NOT NEED TO BE ARRESTED

Getting Rid of Bail Is Only the Start

By Ginia Bellafante

The New York Times
June 1, 2017

Toward the end of last year, Peter Goldberg, who gave up a remunerative career providing legal counsel to hedge-fund and private-equity firms, received a call that put him in Brooklyn Criminal Court at midnight to help a 16-year-old boy charged with petty larceny. The boy had been accused of stealing a pair of sneakers belonging to the teenage son of his foster mother, an act of retaliation, apparently, for the theft of a Game Boy.

Because he had been arrested twice before — once on a charge of jumping a turnstile and another time on a suspicion of possessing marijuana — and had missed certain court dates associated with those arrests because, like most teenage boys, he failed to maintain an unerring Google calendar — the bail set for him that night was $500. Given his circumstance, this was a daunting sum.

Mr. Goldberg had arrived in his capacity as the executive director of the Brooklyn Community Bail Fund, one of several charities created in recent years in cities around the country to pay bail for those who would otherwise end up in jail for low-level offenses, unable to come up with the money themselves. In New York, close to three-quarters of pretrial detainees in the city’s jail system, many exposed pointlessly to the horrors of Rikers Island, are there because they could not afford the price of release at the time of arraignment. Of those, less than 8 percent have been accused of doing anything gravely perilous to the common good — killing someone, committing sexual offenses or carrying a gun.

The cruel absurdity of making freedom contingent on material well-being in a society where, as the Federal Reserve reported last year, only 46 percent of Americans surveyed said they had enough money to cover a $400 emergency expense, has made bail reform a popular cause and the elimination of cash bail a goal of many in the criminal justice reform movement. In April, a federal judge in Houston overturned Harris County’s bail system, arguing that the practice of detaining poor, misdemeanor defendants essentially for the crime of not knowing someone with an extra $1,000, violated equal-protection rights against discrimination based on wealth. The California Senate recently approved a bill that would work to ensure that no one is kept in local jails as a consequence of poverty.

To many who work in the legal system, the thought that the elimination of bail might prompt a crisis of flight risk seems comically out of touch. “My clients couldn’t afford a MetroCard,” Cynthia Godsoe, a former public defender turned law professor, told a roomful of affluent Brooklynites recently at a fund-raiser for the Bail Fund. “White-collar criminals are the flight risk.”

As a philanthropic cause, bail funds are attractive because the outlay does not need to be very big (the Brooklyn fund posts bail only up to $2,000) and the impact is immediate, allowing a donor to feel part of something transformative — preventing a young parent from going to jail for drinking on a front stoop, or driving without a license or stealing diapers or a few bars of soap (these examples are not hypothetical).

But bail reform alone cannot stanch the flow of people into the criminal justice system who shouldn’t be there in the first place. Over the past few years, city officials have congratulated themselves for ending the era of stop-and-frisk policing; last year there were just over 12,400 stops in New York, a sharp decline from a peak of more than 685,000 in 2011. But we seem to be nowhere near the point of upending the ways in which we criminalize personal dispute.

Over the course of several hours spent in Brooklyn Criminal Court recently, I was struck by the number of people who wound up before a judge because of conflicts with ex-lovers, roommates (one man was accused of flipping over the bed of another man at a homeless shelter) and fellow teenagers. (The number of children who end up in court because of fights over stolen sneakers remains astonishing, Ms. Godsoe told me.)

The judges I witnessed were not abusive of the bail system; bail was barely administered. But in nearly every case in which conflict, physical or not, was the issue, the judicial reflex was to issue a restraining order preventing the accused from having any contact with the opposing party. In cases of domestic violence, when a victim’s safety is a concern, this makes sense. But in cases where people might benefit from the kind of conflict resolution that the education system has so emphatically embraced, the action seems counterproductive.

The case of Mr. Goldberg’s teenage client points to another flaw in the system: the propensity for exhausted parents in poor communities to call the police to resolve conflicts with or between children. It was the foster mother, Mr. Goldberg said, who called the police in that case. The failure to offer adequate social services to the poor leaves them, in many instances, relying on law enforcement to fill the gaps, which puts children needlessly in contact with the legal system and exerts extra stress on the police, as David O. Brown, the police chief in Dallas at the time, so movingly pointed out last year in the aftermath of a sniper attack on five officers there.

Monica C. Bell, a legal sociologist who is about to join the faculty of Yale Law School, studied poor mothers in Washington and found that even when they distrusted the police they were likely to call them when their children were truant or addicted or seemed drawn to petty crime. Often the outcome was incarceration and profound parental regret.