A Judge Explains How to Change America’s Twisted Bail System
Alternatives to holding suspects hostage for amounts they can't pay are gaining traction nationwide.
The Honorable George A. Grasso, supervising judge for arraignments in New York, watches that door spin every day. But in his mind, this dystopian spectacle doesn't have to continue—in fact, he has a pretty good idea about how to change it: by reforming the bail system.
It is in cities' criminal courts where bail gets assessed, and assigned, often landing poor, innocent people behind bars—sometimes for days, sometimes for weeks, months or even years—when they're unable to fork up as little as $20. The result can be traumatizing and destructive, as in the case of Bronx native Kalief Browder, who committed suicide not long after spending three years in NYC's hellish Rikers Island jail (his family couldn't pay bail when he was accused of stealing a backpack). In response to outrage at the damage money bail can inflict on (often innocent) people, the New York City Council last year created a fund to help people facing bails under $2,000. Earlier this month, officials announced ATMs were being installed at local courthouses to make the process of shelling out bail money slightly less of a nightmare.
But what about changing the system more fundamentally? Some American locales like Washington, DC, have abandoned money bail entirely, though that idea hasn't gained a ton of traction nationwide. When it comes to the question of money bail in New York, a task force was convened in the summer of 2014 to explore alternatives. Alongside court experts, public defenders, and fellow magistrates, Judge Grasso was one of the task-force chairs, and in his chambers on the ninth floor of the Bronx Hall of Justice, he broke down how bail is changing in America's largest city.
VICE: The main issue with bail seems to be that people just can't afford it—in New York, something like twenty-eight percent of people can't pay it within a week of arraignment. So they just rot in jail, which can have toxic effects—for them, for the public, and for taxpayers. What's your thinking for how to fix that?
Honorable George A. Grasso: I think the nub of what you're getting at is having options that are available to the court that are consistent with people's ability to pay, right? So, one option we have is that we can release people on recognizance (ROR), and actually that is used very broadly in New York City. Now, as a supplement to that, we have implemented what we call a "supervised release" program, which became effective on March 1.
OK, so how does supervised release work?
The thing is, there's no money associated with it. So the ability to pay is off the table.
What supervised release does, instead, is create a very good option, I think, for judges to consider in cases where RoR is not appropriate—for those with any misdemeanor, except domestic violence, and nonviolent felonies. We were approved roughly for twenty-three hundred spots citywide, and by mid-May, we had done an excess of over five hundred citywide, with well over one hundred in the Bronx. I've utilized that myself rather extensively. In fact, I'm doing one today in the arraignment part of the Bronx courthouse.
What determines whether you qualify for bail on one hand, or supervised release on the other?
The underlying common denominator of bail in New York State is whether or not someone is likely to appear in court on the next date, or "flight risk." Traditionally, if we find someone who is not likely, the option had been money bail. Now, supervised release creates an option where we think RoR wouldn't be appropriate, due to extensive bench warrant history, lack of community ties, and things of that nature. So we work with service providers—in the Bronx, we have the Bronx Community Solutions, whose offices are conveniently located right on the same floor of our arraignment parts. We have BCS providers in our courtroom every shift, going through cases at the beginning of the shift, looking at court dockets, seeing which people fit should be interviewed for supervised release.
Who's doing the picking and choosing here? You, as the judge?
Defense counsel is essentially the gatekeeper of the program, so if a BCS provider thinks someone is eligible, they have to speak with the defense counsel and get permission before they interview that individual defendant. A defense attorney might be looking at a higher flight risk, and then they'd be inclined to, say, "Sure, interview my client." I had a case that was a nonviolent felony, a first contact, and the prosecutor was recommending RoR. So we didn't do a supervised release.
But assuming the defense gives permission, and also assuming that the BCS provider finds the defendant to be eligible, based upon the interview, there's a risk assessment that's supplied by the social service providers as a screening tool. Then the provider makes a recommendation to the court as to whether or not someone is eligible or not eligible.
And if all that occurs, then a judge can go with supervised release in lieu of money bail.
In doing their assessment, what do the social service people look for?
The first prong is a risk-based assessment, which looks at things like bench warrant history, and the nature of the charge. The person is then given a risk level. So at the lower end of the risk level, the individual could have as little as one meeting and one telephone call a month with the BCS worker. At the higher end, you could have them every week, as well as other conditions they may attach to it. However, since "dangerousness" is not a specific factor for consideration in a judge's bail determination, this risk assessment is not shared with the court.
Now, on the parallel track—and I think this is very important—is the mandatory needs assessment, which the individual must submit to. Is their insurance reviewed? Do they have the right level of healthcare? If not, they can be advised how to get Medicaid, or how to get insurance. Are there any underlying substance abuse issues? Are there any underlying mental health issues? Housing issues? Employment issues? All of that is discussed as part of the assessment.
But if you're not making someone shell out a bunch of cash, the way bail normally would work, how do you ensure they'll return for their next court appearance?
It's a serious program, with serious consequences. So an individual who is going to participate has to tell the court affirmatively that he or she wants to be considered for it. That individual then signs a contract in the court with a series of provisions and obligations, all designed to ensure that, while we're not requiring money bail, we have something that is a tangible mechanism for an individual to understand his or her obligations to come to court.
In addition to that, they agree to completely cooperate with all contacts—phone calls, meetings—and stay out of trouble, like not getting rearrested while the contract is in effect. Of course, they also agree to make every court appearance. If they break the contract, the violation is brought to the attention of the court by the service provider, which they're required to do. And we can go back to that case, and set cash bail. If they can't make the cash bail, they stay in jail for the duration of the case.
What we're really doing with this is taking on that ability to pay issue, and putting the ball in the court of the defendant. The ability to pay is off the table. What's on the table is whether the defendant is going to step up to his or her end of the bargain. If they do that, then they will be out—they will not be going to Rikers Island, and they will be out as defendants as long as the case is in play. That's it.
What have you seen so far? Is it working?
I'm hearing the appearance rate in the Bronx is very, very high. And what really has the potential over time to change the whole dynamic of how we work to address people's needs in criminal court in a non-punitive way is that mandatory-needs assessment.
We have a lot of people who just churn through the system repeatedly: people who have underlying substance abuse issues, whether it's drugs or alcohol; people who have varying degrees of mental illness that have been unaddressed; or people who are homeless, and in and out of shelters. I've been hearing compelling stories about people who were in very, very difficult circumstances, and just upon sitting down in the mandatory-needs assessment, opened up in ways that they hadn't previously done, voluntarily submitting to services that not only could potentially keep someone from coming to court, but, even more importantly, put someone in the position that can address long-term services and needs that have gone unaddressed, and almost guarantee that person to continue churning through the criminal justice system. And it could be life-changing, in some cases.
And then it also gives the courts, the DAs, and the defenders excellent opportunities for non-jail dispositions. So your "sentence" is to continue to accept services that may be crucial and potentially life-changing.
Check out our documentary about for-profit bail in the United States.
In that mandatory-needs assessment, should someone be, say, in and out of the shelter system, what goes through the mind of the service provider? Are they thinking, "This person cannot possibly afford a money bail option?"
If somebody is in and out of shelters, that's raising a red flag, like, "What can we do to help this individual, in the here and now, with stable housing?" And with stable housing, we can do a couple of things with that. One, it makes it much more likely that the person is going to live up to the contract in hand. And, even more significantly, if we can do that on the front end of these cases, or initial contacts at arraignments, we can make it a lot less likely that the person is going to get rearrested and churning through the system, without sending them to Rikers Island.
How do you see this progressing in the future? Do you think that, over time, it'll be more and more accepted as an alternative to bail in America?
Well, I can tell you, to the extent that I'm hearing from people who are critical, it's like, "How come we can't use more of this? Why don't we have more options?" And that's generally the feedback from the defense as well. We're about three months in, but I think we're going to see very high rates of appearance, and right there, that's crucial. Over time, I think that this has the potential to have a significant positive impact on recidivism.
The reality is, unfortunately, that we're dealing with populations of people who have many challenges in terms of housing, medical issues, and substance abuse. But at least it's a start, by using the authority of the court in a way that is not punitive, per se, but is more focused on combining an ability to enhance someone's likelihood of appearance with potential connection to services that could be crucial to them, and helping them avoid constant contacts with the criminal justice system.
When you first started working on this issue, what drove your interest? Not every judge is particularly worried about the losing end of the bail system.
Prior to being a judge, I was a member of the police department. I started as a twenty-two-year-old police officer in 1979, became a lawyer in the department, and, at one point, did police disciplinary work. I was general counsel for the department, and first deputy commissioner for eight years before I became a judge. So the opportunity to be in the court, and be involved in programs that can, in certain ways, recast the reality and the perception of what the court can do in a positive way is something I feel very fortunate to have the opportunity to be involved in.
I think a core thing that all of us in the criminal justice system—whether it's law enforcement, defense, prosecutors, judges—can agree on is the respect for the rule of law. And a whole variety of good, positive options, available at the earliest stages of the process, works to enhance justice for an individual, and, at the same time, if done right, enhance public safety. These are the things that we need to work toward, and I think a program like this gets us to rethink this as a system in a positive way.
How do you see bail changing in the years ahead?
Clearly, there's a lot of attention being paid to mass incarceration, and the collateral damage done from policies left over from a time of very high crime in this city, and state. And now, especially in the city of New York, we are in a time of almost historic public safety, in many respects, yet we still have levels of incarceration that we would like to work on.
So the twin challenge for the system is to use this opportunity we have now, with the public safety, to maybe rethink the dynamics of the process in a positive way. And like I said, with the supervised release, we're squeezing out the ability to pay, but the quid pro quo is that it's not dependent on the size of his or her bank account, but their commitment to the rule of law, and the process. I believe that what we're doing now citywide in the courts could be foundational, if it works the way it can work. And I believe it can work in rethinking the need for money bail.
This interview has been lightly condensed and edited for clarity.
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