Criminal Justice

Cashed Out

What happens when a community bail fund stops paying bail and starts trying to abolish it?

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Revolving bail funds are the closest thing there is in activism to a perpetual motion machine. A bail fund steps in on behalf of a defendant to pay the bail bond set by a court. With bail paid, arrestees can go home, keep their jobs, and resist pressure to accept a plea deal in order to leave jail. As long as the defendants show up for their trial dates, the bail money is returned to the fund and can be used again and again and again, as long as bail exists.

That last is the reason that the Brooklyn Community Bail Fund (BCBF) blew up its own successful model in 2019. The organization announced it would stop paying individual criminal bails (though it would continue to pay immigrant detention bonds). The new focus would be ending cash bail, not ameliorating its effects.

New York is the only state to explicitly recognize and regulate nonprofit bail funds. The 2012 Charitable Bail Act codified how such groups could interact with the criminal justice system. Bail payers must be licensed by the state as bail bond agents, passing background checks and licensing exams. They may pay up to $2,000 worth of bail for defendants and may only assist defendants charged with misdemeanors, not felonies.

That means bail funds could not have paid the full bail of Kalief Browder, a 16-year-old boy charged with stealing a backpack in 2010, whose bail was set at $3,000. Unable to pay, he spent three years at Rikers Island awaiting trial, approximately two years of it in solitary confinement. He committed suicide after his release.

In 2018, when I began interviewing BCBF employees about their work, I asked Peter Goldberg, then the executive director, whether he hoped to see the Charitable Bail Act expanded so the fund could assist a broader range of people. He said no: The goal wasn't to pay more bails. "The worst thing we could do is to normalize the system," he told me. "Bail funds are not a solution to cash bail. We're working to put ourselves out of business."

Still, the case for the basic function of paying bail was compelling. "Many donors understand that if their son or daughter found themselves in this position—there's no chance they'd spend the night in jail," says Melissa Benson, at the time the BCBF's director of development. Bail funds even attracted attention and money from the effective altruist movement, a constellation of individual donors and grant-making institutions who try to maximize the impact of their charitable giving. Most effective altruist causes are focused on global health and poverty—it's easiest to quantify the value of malaria nets or direct cash transfers. The more you focus on the poorest and most vulnerable, the more cheaply you can save lives.

The revolving structure of a bail fund was part of the appeal for these donors. The money they give doesn't get used up. As the Open Philanthropy Project noted in 2015, "the vast majority…of dollars donated revolves to help multiple cases and lives." The next year, the Open Philanthropy Project directed a $404,800 grant to the BCBF. Buy a malaria net and the money can't be used again, but bail fund money keeps working, bailing out prisoner after prisoner.

The Brooklyn Community Bail Fund is one of many such funds across the country. The Minnesota Freedom Fund and similar organizations attracted national attention after the death of George Floyd in 2020, with politicians such as then–California Sen. Kamala Harris promoting them as a way to support protesters. (In practice, protesters were a small share of the people assisted by these funds, whose biggest impact was for people who were accused of committing unnewsworthy crimes.)

Bail funds had looked like a way of outsmarting the system: Courts could keep setting bail, but a bail fund operated as a kind of nullification of the prosecutor's recommendation and the judge's decision. The revolving money seemed to many bail fund donors, including me, like a way of turning tragedy into farce. But the BCBF team had come to believe they'd essentially been conscripted into the carceral system they wanted to dismantle.

'You Can't Let It Continue'

In the run-up to the 2019 passage of bail reform in New York, the BCBF's Carl Hamad-Lipscombe was working as a public defender. He heard legislators argue that abolishing cash bail was unnecessary, because groups like the Brooklyn Community Bail Fund solved the problem of bail already. "We were a crutch, holding up this situation we don't believe in," he said. Bail funds let politicians get the softer outcome they wanted without having to put their names to an attempt to change the law. The BCBF's solution was to force lawmakers to confront the costs of the current system.

Goldberg believes that New York already has the tools it needs to do away with cash bail. At least on paper, he says, "New York already has an incredibly progressive bail statute." Judges are free to choose from nine different forms of bail, but overwhelmingly, they use only two: cash bail and insurance company bonds. Courts also have the option to impose nonmonetary restrictions such as electronic monitoring, pretrial support programs, or a requirement that defendants give up their access to guns. Switching to one of these options requires only political will, not statutory permission.

No matter what, courts are supposed to choose the least restrictive means required to get a defendant to return for trial. When the overwhelming majority of defendants whose bail is paid by a bail fund—and who thus have none of their own money at stake—show up at trial, it undermines the premise that cash bail was the least-restrictive option available. Those defendants didn't need to have money on the line in order to come back.

The BCBF keeps track of what options are available through its CourtWatch program, overseen for a time by Hamad-Lipscombe, who served as the fund's director of advocacy and policy before succeeding Goldberg as executive director in June 2021. In nonpandemic times, court watchers trained through the program sit in courtrooms and tabulate data on arraignments and bails. They show up in bright yellow shirts, a visible reminder of their presence to everyone in the courtroom.

The goal, as Angel Parker, the CourtWatch NYC program coordinator, explained it to a group of prospective volunteers in March 2021, is "to collect and publish data about prosecutor behavior and compare what's happening in the courtroom with publicly announced [district attorney] policies."

Court watchers record the demographic details of defendants, what they're charged with, and what recommendation the prosecutor makes. If a defendant has bail set, they note the amount. They also keep track of whether anyone in the courtroom explicitly addresses whether the defendant is a flight risk, whether the bail is the least restrictive way to ensure the defendant will return to court, and whether the defendant can pay the bail without undue hardship.

In a July 2020 report, the CourtWatch team noted that prosecutors and judges relied heavily on cash bail, even though they were supposed to use less restrictive means when possible. Seventy percent of defendants whose alleged crimes qualified for bail had bail set. Only 13 percent were released on their own recognizance to await trial. When bail was set, the median amount was $10,000.

Since the 2019 reform went into effect, New York law has required that judges offer the option of a partially secured bond in addition to cash bail. A partially secured bond allows defendants to pay a portion of the total bail (capped at 10 percent) to go free while owing the full amount if they do not show up to court. The court watchers observed that judges followed the letter of the law while violating the spirit: Secured bonds were set much higher than the cash option, so that many defendants still faced impossible-to-meet charges.

With COVID came a shift in methods. Instead of visiting courts in person, volunteers looked up data in WebCrims, a state-run website that tracks cases. Since October 2020, the CourtWatch team has trained more than 50 digital court watchers, who have compiled data from nearly 6,000 arraignments. Tabulating data online comes with some advantages—the volunteers are no longer trying to guess the approximate age or other demographic data of the defendant. However, their absence in person may be felt by defendants and their attorneys. Those yellow shirts, in the opinion of one volunteer I spoke with, are a tangible pledge of support for inmates in a hostile environment.

The presence of court watchers can change the atmosphere of a courtroom, but the courtroom experience changes the court watchers as well. Just as body cameras changed the way people saw policing, physical presence changes the volunteers' understanding of their government. It's seldom that TV procedurals focus on arraignment and bail, but it's this step of the criminal justice system that often determines the outcome.

Nationwide, only 2 percent of federal criminal defendants go to trial, according to a Pew Research Center analysis. In New York in 2017, the figure was 3 percent. Most cases are resolved through plea bargains, and defendants who are detained before trial are much more likely to plea out. When the BCBF was paying criminal bail, the group found that its clients were "three times as likely to have their criminal cases dismissed or resolved favorably compared with similarly situated individuals incarcerated pretrial on low amounts of bail."

It was court watching, in fact, that spurred Goldberg to make bail reform his full-time job. He had been working at a white-shoe law firm, making time for pro bono projects. The Brooklyn Defenders, a well-known public defender organization, asked him for help setting up a bail fund, and as part of his research he began sitting in on arraignments. The visits galvanized him. "Once you see the system firsthand," he says, "you can't let it continue." CourtWatch lets the system create its own critics.

Doing Good in a Moment of Crisis

From the earliest days of the BCBF, its work included a data-gathering component, even if it wasn't explicitly part of the mission. The team members paying bails became experts on all the unwritten rules of the bail system. "A family member does this only once. We do this every day," explains Ash Stephens, a senior bail associate at the fund.

The bail payers learned when to rush to post a bail before a shift change, because if they missed that unofficial deadline, the client might wind up stuck in jail overnight. They learned how the operation varied from borough to borough, which offices still relied on fax machines, which kinds of payment were accepted. They learned who to call to nag to get bail money back after a client appeared for their trial. "You have to be vigilant about it," Stephens says.

Their experience observing the practices of for-profit bail bondsmen led the BCBF to partner with other organizations to form the Bail Bond Accountability Coalition (BBAC). They advocated for a Bail Bond Consumer Bill of Rights and other consumer protections that were eventually passed by the New York City Council in 2018. Bondsmen were required to provide potential clients with that bill of rights, which detailed maximum fee schedules, information on reclaiming collateral, and instructions for reporting a dishonest agent.

In some ways, this was the beginning of the bail fund's incorporation into the system it wanted to dismantle. The criminal justice system is much larger than those who are officially employed by courts, prisons, and prosecutors and public defenders offices. The prison-industrial complex has delegated many jobs to private entities who aren't directly accountable to voters.

Prisoners' phone calls are administered by for-profit entities, for example. Their family visits are replaced by proprietary videoconferences. Even their mail is handled by a service that scans and digitizes it, eliminating the inmate's opportunity to touch the crayon scribbles from a child or smell a partner's perfume on the paper. In some cases, these companies provide services the prisoners would otherwise not have access to at all. But too often, they exploit what is typically a state-guaranteed monopoly over a literal captive audience to extract high fees for poor service—all with less theoretical accountability than their public sector counterparts.

Goldberg sees for-profit bail companies as part of this larger system. "We have outsourced an important function—ensuring people come to court," he says. But defendants don't have the same due-process protections in their interactions with private companies that they have with agents of the state. "Bondsmen can do things we don't allow police to do," says Goldberg—for example, entering your home without a warrant.

Technically, the defendant is the customer of the bail bondsman, but clients enter the relationship under heavy pressure. "If they're using a bondsman, they're in a point of absolute crisis," Goldberg argues. People facing incarceration are no better prepared to be canny consumers than a heart attack victim trying to comparison shop hospitals from his ambulance gurney. The bondsmen become one more piece of what Goldberg calls the "user-funded criminal justice system."

To the extent it could, the BCBF tried to use that moment of crisis as an opportunity to do good. When the fund was paying bail, it also operated a client services team that aimed to help with more than just the immediate problem of pending incarceration. "We have access to a person at a moment of maximum vulnerability," says Benson, the group's development director. Often, a client's situation was already unstable; merely bailing them out leaves them at risk of repeated encounters with the legal system. "It's a function of poverty that that person was in a position that led to arrest in the first place."

The arrest offered the client services team a chance to intervene, but the team says it was important that they not overwhelm or dictate to clients in their moment of vulnerability. "It's easier to say, 'You're homeless, go to a shelter,'" Goldberg says, "than to hear what they need."

The client services team is staffed primarily by people who have themselves had brushes with the criminal justice system. They don't funnel clients into a program or demand anything in exchange for paying bail.

The day prior to our 2018 interview, Derrick Cain, then the director of client services, had been supervising two relatively green interns. The client services team is supposed to respond only to a client's self-identified needs, but when the interns sat down with the man they were supposed to help, they couldn't contain themselves. The client entered the office in dusty, dirty clothes, and the interns were eager to show him to the clothing closet.

It wasn't until Cain stepped in that the client had space to say he didn't need clothes—he needed a hardhat. He was a construction worker, untroubled by the grime of the job, but he needed supplies to do his work and a MetroCard to cover his commute through the end of the week.

The clients' culture clash begins at the front door. At the time I visited, the BCBF office was housed within a WeWork building. That company's quirky yet sterile "airspace" aesthetic made it a strange fit for a bail fund. Décor featuring "gilded boxer dogs," Goldberg says, hardly put clients at ease or made them feel welcome.

Cain saw it as part of his job to run interference with the WeWork staff. The week before our 2018 conversation, the lobby manager had called the police on one of the BCBF clients, one who Cain said struggled with "severe mental health issues."

Before he left in 2020 to found Touchdown NYC, an organization that helps former inmates as they reenter society, Cain was a bridge to the office staff as well as to the clients. He preferred to avoid bringing up his own history of incarceration (24 years, second-degree murder), but there were people who come in with an ingrained distrust of organizations that claim to help. Cain had similar frustrations when he was reentering society, winding up in an employment program that he felt was focused only on getting bodies in a room to collect fees, not on providing real help. He would share his story when he thought it was necessary. "But I hate doing it," he told me at the time.

Connecting to a client isn't a guarantee the team can help. Some needs are simple—clients often need a cellphone so they can receive reminders about their court dates. Others need help getting an ID or finding employment opportunities. The team routinely hands out Connections, a thick paperback book published by the public library that acts as a switchboard of service organizations.

But some client-identified needs are much harder to meet. Addressing mental health issues or chemical dependency means going beyond the client services team. Housing in New York is hard to come by. Although the team can put clients in touch with navigators and advocates, "We're not going to create the housing," Benson says. Paying bails is more immediately solvable. "Housing isn't a $500 dollar problem."

'The Cage as a Last Resort'

The shift from bail and client services to research and advocacy removes the excitement of having an impact right away. Donors who want to be part of keeping someone out of jail today can donate to other active bail funds. (BCBF donations still go to support immigration bond payments, which revolve much more slowly than ordinary bond payments and thus require a larger pool of reserves.) Those who stick with the BCBF are making an investment in an uncertain future.

Bail reform has the potential for a broad appeal. The more modestly it frames its goals, the more people may be sympathetic. It can be simply a form of better quality control—helping judges be smarter about which bail options they use, making sure the most dangerous defendants are held while letting others go free. This is the technocratic approach offered by recidivism prediction algorithms, which have come under criticism for racial disparities in their recommendations.

That's not the tack Parker, the CourtWatch program coordinator, took when she led a seminar for CourtWatch volunteers in March 2021. Parker didn't talk about patching the cracks of a flawed system—she positioned the program as part of the effort to begin dismantling the system. She was skeptical of incremental improvements, saying, "We don't necessarily believe there is a progressive way to cage and torture people and separate them from their families."

Hamad-Lipscombe knows that calling for a future without prisons is a controversial tack to take. But as he sees it, the status quo has already been proven not to work. At minimum, he wants to see an inversion of the current system, where incarceration is the default response to crime. Today, he says, "we start from a position of 'let's put someone in a cage and then figure out if something else could work,' rather than seeing the cage as a last resort."

It's easier to point at what's wrong with the current system than it is to offer a clear vision of an alternative. When district attorneys focus on conviction rates as a measure of their success, they imply that their goal is to achieve a guilty verdict every time. If instead the D.A. sees his or her role in the context of a truth-sifting adversarial system, it isn't necessarily a defeat to lose a case. They make the strongest good-faith case they can in order to help the jurors weigh the evidence. Sometimes that will mean discovering that the defendant should not be convicted. It's rare to hear a D.A. speak about cases he or she feels proud of losing.

Still, conviction rates are easy to tabulate. When I asked Hamad-Lipscombe what a better statistic would be to measure the effectiveness of a D.A., he pointed to holistic measures of the health of the community the D.A. serves. "A good goal is for communities to be safe without incarceration," he says.

That may be the goal, but at that point the D.A.'s efforts are mingled and mixed with everyone else serving the community. The D.A. can do a good job but find it isn't enough for a community mired in poverty. Hamad-Lipscombe's framework reflects the fact that criminal justice can't be neatly cleaved off from social policy, but it makes it hard to track what's working and what's not.

The balance is hard to strike. It takes careful, patient observation to muster evidence and prompt large-scale change. In the meantime, any individual inmate will need to turn to a different bail fund to get immediate help. When he was still with the BCBF, Cain saw his client services work as an act of resistance to the carceral system as well as a source of relief for the clients he worked with. Everywhere else, he explained, the system operated on mass principles: "You need bodies to fill up police cars; you need bodies to fill up Rikers Island." With each personal conversation and individualized plan, Cain was testifying that the defendants he served weren't part of an undifferentiated agglomeration.

The CourtWatch volunteers share Cain's experience—they see the defendants pass by, individual by individual. They translate them into spreadsheets and charts, but it's the moments of encounter that motivate them to push to change the patterns they're tracking.

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  1. Spending a night in jail was supposed to be a deterrent against doing crime.

    1. The system seems like it suffers from poor incentives, and lack of accountability, and any number of problems. And the people trying to reform it have unrealistic goals, since “abolish prison” is a hard one to square with the likelihood of there still being murders and rapes in the future.

      But there’s also got to be some way around shit like this: “Kalief Browder, a 16-year-old boy charged with stealing a backpack in 2010, whose bail was set at $3,000. Unable to pay, he spent three years at Rikers Island awaiting trial, approximately two years of it in solitary confinement.”

      Like, would he even have been in jail for that long for the actual crime? I mean, yeah, the kid stole something, maybe he’d have benefitted from a night in jail, as you say, or even a week. But unless there’s more to the story (and I’m not discounting that possibility, I’ve read the articles here before) 3 years seems excessive for the theft of a backpack by a 16 year old.

      Too many people living in too small of an area with too few parents around and a schizophrenic society that coddles people one day and then spanks them with an axe the next.

      1. Makes one wonder why no one protested the kid’s right to a speedy trial.

        One thing I do not understand is why criminal trials take so long. You routinely read about burglars going to trial a year after their arrest. A neighbor was arrested several years ago for embezzling $400K, and nothing has happened. What about stealing a backpack takes 3 years to investigate or process?

        There are still people being exonerated who it turns out were convicted by a single eyewitness and nothing else — no physical evidence, alibis ignored, The judicial system we have is a joke.

        1. This case is an example of that phenomenon.

          If you check out the Wikipedia article: https://en.m.wikipedia.org/wiki/Kalief_Browder you can see how his entire ordeal started on the word of a single individual, whose story changed repeatedly.

          It also talks about the trial process, which was fucked.

          “On December 10, 2010, a potential trial date was set after prosecution and defense had submitted notices of readiness. On January 28, 2011, 258 days after his arrest, Browder appeared in court. The prosecution requested a deferment of proceedings. On June 23, 2011, Browder’s record showed: “the People not ready, request one week; August 24, 2011, the People not ready, request one day; November 4, 2011, the People not ready, prosecutor on trial, request two weeks; and December 2, 2011, prosecutor on trial, request January 3, 2012.”

          On June 29, 2012, Browder’s record showed; “the People not ready, request one week; September 28, 2012, the People not ready, request two weeks; November 2, 2012, the People not ready, request one week; December 14, 2012, the People not ready, request one week.”

          On May 29, 2013, DiMango freed Browder in anticipation of the dismissal of the charges against him one week hence.”

          It would seem like there ought to be a trigger function that releases people if the state can’t get its shit together, at least for lesser crimes. When you get a record like “August 24, 2011, the People not ready, request one day; November 4, 2011, the People not ready[.]” something needs fixing. Asking for a “day” and then still not being ready 2.5 months later is a sign of incompetence that should result in getting fited, especially when a person who is notionally presumed innocent is sitting in jail waiting on you. Though to be fair, in this case, he was sitting in jail for notionally violating the terms of his probation for a previous offense.

          I’m not sure where to draw the balance. One could say “he hasn’t been found guilty of this offense yet, so he shouldn’t be in jail for violating his probation, because he hasn’t been found guilty of violating his probation yet either”, and then if he *is* found guilty, he serves the sentence for both crimes consecutively. But if taken to the extreme, that leads to the potential for some black hearted villain out there to continue to commit crimes while awaiting trial because he’s not been found guilty on any of them yet. I suppose that would incentivize the community to make the prosecution get its ass in gear.

          Or it could be someone who truly is innocent who keeps having the system try and fuck him based on shitty testimony, and who deserves to *be* free while all of that plays out. It’s not like we’ve never seen “you might beat the rap but you’ll never beat the ride” around here.

          Still, this kid was not the right example here.

          1. Thanks for researching all this. Always good to hear more details from both sides. Yes, if he was on probation when arrested again, bail should be at least higher, if not infinite; but trials should be a lot speedier. It’s a backpack. Was it in his possession? Was there any better evidence than a single eyewitness who didn’t know the kid beforehand? I have seen way too many things myself which video later showed I remembered wrong; I have zero faith in eyewitnesses unless they knew the people involved beforehand.

            1. It was a pretty crappy arrest, IMO.

              “Browder said he was going home from a party. He thought the police were carrying out a routine stop-and-frisk, a police procedure he had undergone on a number of occasions.

              Police officers were responding to a 9-1-1 call placed by Roberto Bautista about the theft of a backpack containing a camera, $700, a credit card, and an iPod Touch. Bautista had said, “Two male black guys … they took my brother’s book bag.” Browder told the attending police officers, “I didn’t rob anyone, you can check my pockets.” The police searched Browder but they did not find the backpack. Bautista, who was sitting in the back seat of a police car, identified Browder and his friend as the thieves. He said the theft had occurred two weeks earlier. Bautista’s testimony of the date of the theft varied between interviews, as well as other aspects of his story. Initially, Bautista implied that the robbery occurred the night of the 9-1-1 call, but upon questioning by officers at the scene, he stated that the robbery had occurred two weeks prior. At the scene, Bautista also implied after questioning that someone had merely “tried” to rob him and may not have succeeded. Furthermore, on the initial police report filed after the arrest, Bautista indicated the robbery had occurred “on or about May 2″, but Bautista later told a detective that it happened on May 8.”

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              1. Irrelevant. He was a piece of crap already in the system for one crime that he was convicted of, at 16.

                He should’ve spent every night at home, after that, not in the street where he’d encounter police routinely.

                His own family never stepped up for him. No friends stepped up for him. He never stepped up for himself.

                I’ve got no sympathy.

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              2. It was a pretty crappy arrest according to his family and the defense. We’re not hearing from the other side.

                It remains the case that he wasn’t locked up because he couldn’t afford bail, he was locked up because he was on probation for a previous felony, and didn’t qualify for bail. His failure to make bail had nothing at all to do with excessive bail, so why is he even in this story?

                Yeah, he’s the poster boy for “Justice delayed is justice denied”, and it’s even possible he was factually innocent, though the actual reason his trial never happened was that the key witness had left the country. But bail wasn’t the issue here, he didn’t qualify for it.

                “He committed suicide after his release.”

                He committed suicide three years after his release. It doesn’t appear to have anything to do with what he’d been through, the guy had clinical depression.

                Every time I read a story like this in Reason, and look up the details, I find that material facts have been omitted. Every Damn Time.

                Is it listed in the Reason style book?

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          2. There was a second individual who was with Mr. Browder. He was also arrested. However, he was released on his own recognizance because he was not on probation. The massive delays and terrible advice of the public defender led to years of incarceration. Also, NYC has been using a risk assessment checkbox for those arrested. It is likely that risk assessment was provided to the judge who considered bail rather than release on own recognizance.

        2. As for the neighbor you mentioned, the delay there might well be an intentional strategy on their part, to try and get the best result for themselves at the trial.

          1. Whether the neighbor thinks she can get a better outcome by stalling is irrelevant, to my thinking; the purpose of the trial should be to find the truth as fairly as possible, not favor either side, and once you decide to arrest someone, you should already have pretty good evidence. This is a local case, supposedly stealing from her BIL’s company. Does it depend on forged checks? Questions of authorization? All that should be addressable within weeks at most. This isn’t a matter of chasing millions through international accounts.

            Our judicial system is fucked.

            1. And the folks responsible are re-elected, re-appointed, and given awards by a population that doesn’t give a damn.

              1. I don’t think that’s true. The problem is that one vote has to stand for everything. Imagine if you had to choose which store to shop at for the next four years by election. One single store for groceries, clothes, computers, fuel, everything but cars and homes.

                That’s the primary problem with monopolistic government: it’s a monopoly. If all government did was collect and redistribute taxes, it would be bad enough; but it controls way too damned much, all decided by a single vote every four years.

                1. What I meant to say is that people know their votes can’t change the things they actually care about, so they hold their nose and vote for whichever evil is more likely to not fuck up those things. Nobody votes for anything, because monopolistic government doesn’t give them that choice.

            2. That’s a true statement about the legal system, but IIRC the reason behind the speedy trial clause was the habit of the British to aren’t people and just… never actually hold a trial, or hold it years and years and years later. It’s intended primarily as a protection for the accused.

              Which isn’t to say that it shouldn’t be applied as protection of the rights of the plaintiff, as well, but there’s a fair bit of difference in the evidentiary levels involved for embezzlement and for robbery. It makes some measure of sense for a trial for the former to take longer for the defense to prepare for.

      2. Unsurprisingly, there’s more to it.

        At the time of his arrest here, he was on probation, having been “charged with third-degree grand larceny. Police testified that he had crashed a stolen bakery truck into a stationary car while joyriding.” He had pked guilty.

        The charges he was facing during that three years at Rikers wasn’t just “theft of a backpack”, it was second-degree robbery. Since he’d been arrested and charged with that, his probation officer had placed him in violation status, so the amount of bail referenced in the article is irrelevant, because paying the bail wouldn’t have gotten him out of jail anyway.

        That said, there’s bullshit on the flip side, too. His arrest was based entirely on the (frequently varying) testimony of a single individual. The charges were also based on that testimony. And the prosecution fucked around for apparently literally years not being ready to actually try the case.

        So while he’s a good example of the system needing reforms, he’s a terrible example of the *bail* system in particular being flawed. Because his bail may as well have been infinite, with the probation hold on his potential pretrial release. It’s basically the wrong example to use for this article. Yes, terrible things happened with his case, but they have absolutely nothing to do with the problem the article is discussing.

        1. Hmm. As a practical matter, it doesn’t seem to matter so much whether they try him right away if he’s going to be in for a probation violation anyway.

          But. He still does have a constitutional right to a speedy trial, regardless.

          1. Ah, but that presupposes guilt. If he didn’t actually *commit* the crime he’s very slowly being tried for, he didn’t actually violate his probation, either. So he’s essentially being punished for nothing, insofar as he was complying with the terms of his release for his original offense.

            But yeah, the speedy trial clause seems like a much better drum to bang on with this example, than the bail system one.

            1. Exactly!

      3. “Kalief Browder, a 16-year-old boy charged with stealing a backpack in 2010, whose bail was set at $3,000…”

        What else did the kid do before this offense? Besides that, and being cognizant that any giant bureaucracy is going to have its share of gigantic screwups, a petty larceny charge doesn’t take three years to process, and Riker’s is going to want that kind of offender out. They don’t have the space. Even before the decriminalization craze, and Covid screwing things up, does the story as told sound normal to you? “Steal a backpack, sit in county three years before trial?” It doesn’t to me.

        So what else happened, that the author isn’t telling us?

        1. And I see you filled in some of the blanks above.

          I will say that, unless you know the person and their case, to where this isn’t true: speedy trial ‘violations’ are due to the defense trying to continue the case. (Traffic court is a glaring exception.)

          Lots of good things happen on the defense side when you continue. Witnesses may no longer be able to testify. Given the environment where a lot of crime happens, the witnesses may themselves commit crimes in the interim, and damage their credibility. Their ability to recall the events in question get weaker.
          Evidence if not collected beforehand, becomes unavailable. Maybe a different prosecutor gets the case, and is more amenable to dealing. Sure, the defendant still has this hanging over their head, but whatever.

          Whereas if the prosecution is the one fucking up…a speedy trial motion can, depending on the state, result in the charges being dismissed. And your client gets to go. Of course, they can be refiled, though I don’t know what effect any statute of limitations might have, but then they have to go to the trouble of rearresting the guy, etc. etc… And I imagine it looks bad for a prosecutor’s office to have that happen.

      4. Like, would he even have been in jail for that long for the actual crime? I mean, yeah, the kid stole something, maybe he’d have benefitted from a night in jail, as you say, or even a week. But unless there’s more to the story (and I’m not discounting that possibility, I’ve read the articles here before) 3 years seems excessive for the theft of a backpack by a 16 year old.

        It’s grossly excessive for anyone. This is the type of crime that’s rapidly handled in “night court” 72 hours… maybe a week after the crime at the most. No one spends 3 years in prison awaiting trial for a stolen backpack. Something else was going on. I can pretty much guarantee it.

        And if there WASN’T anything unusual going on, that the kid literally spent 3 years in jail awaiting trial for a stolen Jansport backpack, then this is an indictment of the court and speedy trial issue, not a bail reform issue.

      5. How about addressing the “right to a speedy trial”? I don’t buy the three years awaiting trial bit. There had to be more to it than that. If there wasn’t any competent lawyer could have had the charges dropped.

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  2. “A good goal is for communities to be safe without incarceration,” he says.

    So just ask people to “Behave, please”?

    1. I mean, it’s a great goal. Utter Utopic Unobtainium, but great. It’s a beautiful dream.

      I’d complain about people with completely unrealistic ambitions, but that would probably be brutally hypocritical of me. Still, this movement might benefit from setting some more reasonable targets. I wonder if they’d lose more people from attrition of the Utopic minded than they gained from the much larger pool of people who could be attracted by a more achievable goal.

    2. If we can just say “avoiding criminal activity is strongly recommended”, why not the same for wearing masks?

    3. Jebus that sucks.

      The problem with having some kind of “release trigger” time period is shown in one of the comments above where the poster knew of someone in his area who had been arrested for embezzling $400k with no apparent action taken at all IN FOUR YEARS. It would basically give well-heeled and well-connected criminals a target. They could more effectively budget their legal expenses against the vagaries of how much or how little the prosecution hated them, and just run out the clock.

      And that’s not a goal an altruist should strive for.

      1. Obviously the “release trigger” wouldn’t be “pulled” by the defense causing a delay.
        If anything, a defense continuance would re-start the clock on any type of trigger.

    4. “A good goal is for all the individuals in communities to be super rich and have sex with beautiful young people every day.”

      “A good goal is for me to be able to drive on roads at any speed I was without being inconvenienced by other vehicles or pedestrians.”

      “A good goal would be for me to never be subjected to mindless do-gooder virtue signaling.” and I know I’m being unduly harsh there, the people involved in trying to improve the bail system are addressing some real flaws. But there’s also a huge element of anecdotalism and performative virtue. *sigh* Probably can’t get the one without the other. Wish ’em luck.

  3. So they understand “moral hazard” when it applies to politicians passing bail reform, but not when it applies to letting defendants go without pledging security before a trial.

    And yes, contributions to a bail fund get used up. Every time a defendant doesn’t show up, money is forfeited.

    1. What I wonder is, where is the incentive for the one bailed out to show up, since it was with someone else’s money.
      I thought the money paid for bail was the hook, to get the charged back into court, so the bail would be returned.
      A “bail fund” seems to remove the incentive to show up.
      Any studies done on the results?

  4. That must have been a really nice backpack to be worth all that trouble. Anyone have a link to it?

    1. “Police officers were responding to a 9-1-1 call placed by Roberto Bautista about the theft of a backpack containing a camera, $700, a credit card, and an iPod Touch.”

      https://en.m.wikipedia.org/wiki/Kalief_Browder

      1. Thanks. Solicitation involving an evolving narrative.

  5. Cash bail is your last line of defense against a tyrannical District Attorney. Even Californians weren’t gullible enough to vote for ending cash bail last year.

  6. Speedy trial? Last week, the local newspaper headlined that a murder trial was getting underway at local courthouse. The accused allegedly committed the murder in 2015, fled, and was picked up in 2018. He’s been in county prison ever since and is just getting his “speedy trial.”

    1. Well, does it say anywhere that they don’t mean “speedy” in relation to geological time?

      “If we don’t give you your day in court before this stalactite touches the pool, we’ll have to let you go.”

  7. This article is abjectly stupid. If you don’t believe that there should be a mechanism to incentivize criminals to appear in court, and there is no penalty for failing to appear, then nobody will show up for court. Believing such idiocy should be automatically be disqualifying to be officers of the court.

  8. So they only pay bail for “immigration cases” now? That makes plenty of sense.

    The bail reformers seem to include a lot of “like, wow, man abolish prisons” people and some more and those who want to “mak[e] sure the most dangerous defendants are held while letting others go free.”

    Now, that last one, we’ve seen where it ends up: The Jan. 6 people being held without the option of bail because they’re deemed particularly dangerous.

    I’ve previously linked this 1989 article from a libertarian magazine about the law Congress passed which authorized the Jan. 6 stuff:

    “The Bail Reform Act of 1984 also hinders a successful defense by making it easier to hold suspects in jail prior to trial. This practice prevents accused persons from freely talking with their attorneys, locating friendly witnesses, and otherwise assembling the necessary information to prove their case.”

    https://reason.com/1989/03/01/trends-191/

    Some libertarian magazine ought to draw the link between this old criticism and the modern situation with the Jan. 6 people, and develop some skepticism about “omg let’s abolish cash bail!”

    If a bail fund “invests” in the wrong person – someone who doesn’t show up for court – they have to pay for it, just like a family member or friend who makes an ill-advised payment of bail.

    So at least these “let’s replace a bad system with the lovely cloud-castles in my head” reformers actually have to keep one foot in the real world. But they won’t have any accountability if their cloud-castle “reforms” pass. If crime goes up they’ll simply say the govt didn’t “invest” enough money in reforming the criminals. If people are held without bail they’ll simply…ignore it, I guess, going by the Jan. 6 situation.

  9. That means bail funds could not have paid the full bail of Kalief Browder, a 16-year-old boy charged with stealing a backpack in 2010, whose bail was set at $3,000.

    No.

    No. Stop right there. No.

    I’ve had some friends who uhh, found themselves on the wrong end of the law and I ended up being… involved with their bail.

    A bail bond is normally ~10% of the bail that’s been set. So if the bail for Browder was set at $3000, then he could have probably been released on a $300 bond.

    If Browder’s bail was bond was $3000, then his bail was likely $30,000 meaning that his “stealing of a backpack” was a much more serious offense, like he killed someone to steal it.

    If his bail was really $3000, and the court was demanding the full amount, that means that there were some extenuating circumstances to Browder’s bail condition, meaning the court saw him as a major flight risk, or this was his eleventy thousanth time before the court with a slew of prior serious offenses.

    So the problem here is likely not “our cruel bail system”. If Mr. Browder was in fact that big of a flight risk, that big of a perceived danger to the community, then in the no-bail system that Reason has been championing, then he probably would have found himself on the wrong end of the binary: Yes, we let you go, No, you’re stuck in jail equation.

    And if Browder was trapped in jail for three years pending trial, then that’s either a major failure of the justice system– not the bail bond system– or there were again, some kind of extenuating circumstances which kept him there for three years. Because “stealing a backpack”, even if you plead guilty, is going to get you 10 days in the county lockup with time served.

    So with all due respect, I don’t trust the “stealing a backpack” narrative any further than I can throw it.

    1. Here’s my tale of why I tend to know how bail works.

      Many, many years ago, a friend of mine who was kind of a “nutty professor” type, found himself in the city lockup because he was picked up by a cop for “driving without a license, and no insurance”. He was immediately arrested and taken to the klink.

      My friend attempted to get ahold of me and was unable to, so called another good mutual friend was able to answer his call. Nutty professor informed my friend that his bail was set at $5,000. My friend called a bail bondsmen and gave him the details. Bail bondsman says, “No problem, that’ll probably be a $500 bond, let me make a phone call to the jail.”

      30 minutes later, the bondsman called my friend back and said, “We have a problem, the court wants the full $5,000”

      “Why is that?” My friend asked.

      “Well, in cases like this, it means that something else is going on, like the judge has a reason to be really pissed off at him.”

      Anyhoo, the extenuating circumstances that I found out later, is my Nutty Professor friend was such an organizational disaster that he had repeatedly failed to get his license and insurance renewed, had been ticketed for it multiple times, had subsequently missed court dates repeatedly (FTA– failure to appear) and subsequently had an arrest warrant out. Needless to say, when Nutty professor was standing tall before the court, the Judge expressed he had had enough of Nutty Professor and sent him to the lockup with conditions of full bail for release.

      1. Did you guys bail him out?

        1. And what was he a professor *of*? Pharmacology, if you catch my drift?

        2. Yeah. Well, my friend did who that many years ago had much deeper pockets than I did. He got the money back of course, because my friend wasn’t a hardened criminal and decided that THIS time he’d show up to court, pay his fines, get his license and renew his insurance. That night in jail had an effect.

    2. At 16, he was already a felon.

      So the backpack was one more grand larceny for him.

      A real troublemaker.

  10. Cash bail is only really a thing in common law countries. And private commercial bail bond companies only exist in the US and Philippines. Even in other common law countries, cash bail is being eliminated.

    Cash bail in the US has really become full of perverse incentives designed to keep jails full, maximize non-jail fines, and keep the money flowing in the current system. Seems to have lost its focus on actual justice.

    This was a good article.

    1. Yeah, it’s a bad system unless you’re viewing it in comparison with a system which allows the denial of bail altogether (for some) and allow (other) people to be released *without* bail.

      If the “reforms” pass, then I bet we’ll get nostalgic for the “unreformed” system.

      Look at the federal example. They paved the way with a law passed in the Orwellian year of 1984. That’s the future under “reform.” Or dangerous criminals walking around free. Or both.

  11. I dont understand this article.

    So we had an organization that pays peoples bail and collects the money when they show up for trial. That organization did good work!

    It then decides to throw away that good work on stupid grounds that it is “perpetuating” a bad system, which … like I swear to God if I hear this argument again. Working to alleviate the harms of a bad system doesn’t mean you implicitly support that system!

    This whole progressive line of everyone is complicit in this is so fucking stupid and blocks people actually trying to do good work.

    It becomes an “activist” organization, whose goal is to … what does it do exactly? Lobbying and social media? How useless is that? It throws money into the worst possible avenue to do good, i.e. political change, whilst helping absolutely no one. This is the worst form of people ranting on social media actually thinking they are driving change.

    At least BLM spent the money on someone, i.e. their founders. Yeah its corrupt, but hey their founders are black, so I guess technically they are helping black people?

    And that’s not how moral hazard works. Its like a drug company refusing to make diabetes medication because people need to lose weight. People do need to lose weight! But alleviating some harm that some people might face is not a bad thing!

    The focus should always be do good. Not, oh there is this 4th order effect so therefore I should just embezzle all this money because everything I do is stupid. Its … more than it being the worst form of progressivism, its just wrong and a cynical view of everything. Also morally bankrupt.

    The is no reason why you can’t do activism and lobbying and all that other stuff AND run a bail fund. But you have a mission as an organization. The bail fund is that mission. Not, tear down everything and rebuild, because that is not possible to do all at once and it is fundamentally a waste. Elections get more expensive and the political atmosphere becomes more toxic. That’s it. You can do all of that on the side. But the mission ought to be the work you are doing.

  12. There are massive untruth issues with this article. Surprised Reason did not research it. Here is the most blatant from NYC CJA who is the pretrial program that has operated in NYC for 50 years. They have produced annual reports for years. “Perhaps most significantly, the volume of money bail has plummeted since 2018. Comparing 2020 to 2018, money bail was set at arraignment only 11,493 times in 2020, compared to 30,288 in 2018 (and over 80,000 times in 1989). At the same time, the percentage of cases with nonmonetary release conditions set at arraignment increased from 77 percent in 2018 to 84 percent in 2020 (it was 52 percent in 1990).” The biased organization noted in this article stated only 13% were released without bond. Someone is lying. I know it is the author of this article!!!
    If reform works so well, why did New York, Alaska, Utah and Delaware end their reforms so quickly? Simple, it does not work!
    Did you know Canada does not use monetary bail for almost all of their arrests? Did you know 60% of their jail population are pretrial defendants? Maybe Canada needs to add bail so more can be released?

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