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Will New York Scrap Its Broken Bail System?

A state senator from Queens wants to scrap the archaic system of holding some people in jail before their trial unless they can pay for freedom.

When Kalief Browder's story first made headlines in 2013, the New York City criminal justice system began to confront one of its harshest realities. Not only did the teenager endure the insane brutality of Rikers Island violence, but he did so for three years without going to trial. And Browder was stuck in that infamous jail complex because his family couldn't afford $3,000 bail for the low-level crime he allegedly committed—stealing someone's backpack.

So Browder's suicide this past June, at age 22, was a tragic affirmation of something thousands of New Yorkers who have gone through the bail process have known for a long, long time: Something is terribly wrong here. And as politicians, prosecutors, and judges across America start to focus more on bail, one new proposal would burn the whole thing down.

On Thursday afternoon, State Senator Michael Gianaris of Queens proposed a bill that would entirely scrap money bail in New York. (As of July, 14 percent of criminal defendants in New York City, or over 45,500 New Yorkers, were being held on bail, as the Associated Press reported.)

Read: Paying Bail in New York Is Next to Impossible

The Democratic lawmaker, who provided a copy of his legislation to VICE, would replace bail with three non-monetary options for judges to pick between. The first would send someone who has allegedly committed an egregious crime—say, murder in the first degree, or rape—to jail immediately. The second would release a defendant accused of a nonviolent infraction or misdemeanor out on their own recognizance (about 41 percent of defendants are already released in this fashion). The third would release some offenders under a form of supervision. No one would put up money in order to be set free from jail.

"This is the criminal justice system just assaulting the poor," Senator Gianaris told VICE in an interview. "Kalief Browder's case is obviously the most egregious example, but there are examples by the thousands every day."

Gianaris—who also works as a lawyer specializing in wrongful convictions—called the current regime of setting bail in New York on flight risk an "anachronism," or something "left over from England in the Middle Ages." It is not in line with the realities of criminal justice today, he argued. "The idea that a wealthy person is less dangerous than a poor person doesn't make any sense," he said.

Jocelyn Simonson, an assistant professor at Brooklyn Law School who studies bail and policing issues, called the proposal "a terrific step in the right direction," as it confronts what Nick Pinto described as "The Bail Trap" in the New York Times Magazine: the horrifically common scenario where a high bail can effectively force low-income defendants to take a guilty plea. In 2012, as Pinto noted, the New York City Criminal Justice Agency released a comprehensive report that directly linked lengthy jail times to convictions.

"Taking away the connection between poverty and pretrial detention makes the system fairer," Simonson told VICE in an email. "And it takes away what is a fairly disingenuous reason for holding people in jail: the idea that if they intended to come back to court, they would find the money to pay their bail."

However, Simonson is concerned that the new legislation leaves room for judges to make excessive use of pretrial detention when people are accused of serious crimes. She also attached a reminder: Bail reform is not a panacea for a broken criminal justice system.

"Fixing bail doesn't fix the system overall," she continued, "and there are still direct connections between socioeconomic status and the likelihood of being arrested and charged with criminal conduct."

Still, on this particular issue, the model Gianaris is proposing would put New York more in line with Washington DC and New Jersey, where cash bail for nonviolent offenders is basically nonexistent, as the Wall Street Journal reported. It would also place the Empire State at the forefront of bail reform nationwide, as Gianaris's plan is the latest in a string of NYC measures aimed specifically at taming the bail beast.

In June, just weeks after Browder's death, the City Council included a citywide bail fund in its fiscal budget for 2016. The $1.4 million initiative would use taxpayers' money to release individuals with bails set under $2,000 rather than imprisoning them in the city's jails, which costs the city about $450 a day per person. (The average stay in city jails is also 24 days, according to City Council Speaker Melissa Mark-Viverito.)

For perspective: In 2013, over 16,000 New Yorkers were behind bars because they were unable to pay a bail of $2,000 or less. And some 6,000 of those people couldn't post for an amount between $500 and twenty bucks.

In July, the Manhattan District Attorney's office—in conjunction with Mayor Bill de Blasio's administration— announced a $17.8 million fund composed of seized assets and city money to substitute in community-based supervision for cash bail for roughly 3,000 low-level offenders. Based on pilot programs already launched in Manhattan and Queens, the initiative includes daily check-ins, drug rehabilitation, and behavior counseling.

This was followed most recently by Jonathan Lippman—the Chief Judge of the New York State Court of Appeals and a vocal critic of the bail system—announcing earlier this month that judges will undergo training to understand new review procedures for bail.

Quoting Alice in Wonderland, Lippman said, "Sentence first, verdict afterwards," to describe bail in New York. "They are meant as a parody of justice," he noted. "Yet the words ring true for New York's bail system." The judge's reforms also include a electronic supervision program for defendants that pass through the dreadful Manhattan Criminal Court, which stays open to 1 AM on most nights just to deal with the seemingly never-ending caseload (this is something I saw firsthand when I spent 16 hours in Manhattan criminal court for a VICE story).

NYC Council Member Rory Lancman is currently in talks with the mayor's office to discuss how paying the actual bail—a more underreported issue that, in effect, makes it very difficult to secure the of release a loved one—can be changed. "It's not just the truth, but the operating principle, of our criminal justice system," Lancman recently told VICE. "And that is, the process is the punishment."

All of these reforms are either being done administratively or else lie in the jurisdiction of the New York City Council, a body that is more prone to criminal justice reform than some others around the state and the country.

This is where things get tricky.

When state lawmakers in Albany return to work in January, Gianaris's bill will have to clear some hurdles. Although the idea has already garnered numerous sponsors in both the State Senate and Assembly, a Republican representative told the Journal that he couldn't imagine any other Republicans—who control the Senate—supporting it. Governor Andrew Cuomo has also remained quiet on the bail question.

In other words, fixing the broken criminal justice system isn't quite as urgent a priority in Albany as it is in Manhattan.

But until January, State Senator Gianaris plans to set out on a campaign to combat critics who argue that eliminating bail is a threat to public safety. "That argument, to me, displays complete ignorance of the issue," he told VICE. "Bail was never a mechanism to keep people off the streets. It was established as a way to keep people coming back to court."

"And I think the time for reform is now," he added.

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