Behind all of the claims about the efficacy of bail reform to reduce unnecessary incarceration and the counter-claims regarding the freeing of dangerous criminals lies the stories of real people. Kalief Browder is one such person. According to the Harvard Law Review (HLR), police picked him [Browder] up off the sidewalk and charged him with robbery, grand larceny, and assault — for a crime he had not committed.”
HLR reports that Browder’s refusal to plead guilty, combined with his family’s inability to come up with the bail money, forced Browder into three years of incarceration, during which Browder was allegedly beaten by other inmates and guards at Rikers Island, in between stints of mandatory isolation.
Sadly, “. . .once he was in the system, and despite efforts by his lawyer, even the initial bail offer was denied him,” as reported by the Marshall Project. Unfortunately for Browder, a previous charge prevented him from taking advantage of bail because it was considered a violation of parole, thus giving him no recourse for freedom except serving time for a crime he apparently didn’t commit.
Ironically, Browder was never brought to trial, and the DA eventually dropped all charges, setting Browder free. However, the damage had been done. In a tragic, yet probably predictable twist of events, HLR reports that “ . . without a job or a high school diploma, he found himself unable to adjust to regular life. Two years after being released, Kalief Browder killed himself.”
Browder’s words are chilling in the prescience to his ultimate demise: “Prior to going to jail, I never had any mental illnesses. I never tried to hurt myself, I never tried to kill myself, I never had any thoughts like that. I had stressful times prior to going to jail, but not like during jail. That was the worst experience that I ever went through in my whole life.”
But is the very nature of a bail system corrupt? Or, asking it a different way, are all bail reforms good? In other words, are bail reforms helping the people, people like Kalief Browder, avoid harsh, potentially unwarranted punishments? The answer is more complex than you might think.
Research is showing that bail itself is problematic. As reported by the Pretrial Justice Institute, “In many of these cases, incarceration serves no legitimate purpose—and its overuse diminishes the presumption of innocence: By law, pretrial detention may be ordered only if an arrested person presents an unmanageable risk to public safety or is unlikely to appear in court.”
However, in practice, as exemplified by Browder, this is often not the case, as people, often poor people of color, are routinely caught in the legal gears of a pretrial system that uses bail as one of its weapons to undermine Constitutional rights. As Reason magazine points out, “The effect is yet more financial pressure pushing poor citizens to accept whatever prosecutors offer if it will help get them out of jail, thus increasing the likelihood of they’ll end up with criminal records that follow them around.”
A 2017 report from The University of Pennsylvania Law School found, “The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who pose no serious risk of crime or flight. Infrequent evaluation means that the judges and magistrates who set bail have little information about how their bail-setting practices affect detention, appearance and crime rates.”
And, a recent Politico article argues that “There are more than 700,000 people in U.S. jails around the country, and about two thirds of them have not yet been convicted of a crime.” Even if you believe people should do the crime if they do the crime, people should either be charged with the crime or if not a danger to society, released until they are.
Another issue is the seeming subjectivity of the whole bail process, which relies on judgment alone. Lamont Redman, a case manager in Jericho, Maryland, characterizes the bail process this way:
Sometimes there’s too much judgment involved instead of going by what is stated on paper. It’s always dependant on how that person may feel that day. To me, there is no continuity in it. Depending on the mood the commissioner may be in, you may get a higher bail or lower bail. Or, this commissioner might go by the book; that commissioner might not go by the book. This judge might do it this way; another judge might not. I think that the way the law should be set up is that everything should be black and white. There shouldn’t be paint involved in the bail process.
And, as HLR points out, there are downstream consequences for bail, many of them life-altering events: “Those who are detained face a cascading avalanche of difficulties. They can lose their jobs because they cannot go to work; without work and trapped in jail, they can lose their homes because they cannot pay rent; separated from their families and unable to support them, they can lose custody of their children or leave an elderly or sick family member without a caregiver.”
Yet, there is a counternarrative, one which describes how dangerous criminals are using the bail restrictions to seek unjustified release. As reported by NBC News:
Across the state, opponents of the new law have publicized cases of suspects set free ─ a serial bank robber, a repeat burglar, a man accused of manslaughter, an alleged hit-and-run drunk driver ─ which they say demonstrate how doing away with bail allows dangerous criminals to remain on the streets. Perhaps the most notorious case is that of Tiffany Harris, a Brooklyn woman who was released after she was alleged to have hit three Jewish women in a bias attack, only to be arrested the next day and accused of an assault on another woman.
And as they say, the devil is in the details, and the details from New York may surprise you. The New York Times, hardly a bastion of conservatism, found:
New York is now the only state in the nation that requires judges to entirely disregard the threat to public safety posed by accused persons in determining whether to hold them pending trial or to impose conditions for their release. In addition, the new law constrains judges from holding repeat offenders with long records of both crime and absconding trial. It eliminates cash bail and the possibility of detention for a wide array of offenses, including weapons possession, trafficking of fentanyl and other drugs, many hate-crime assaults, the promotion of child prostitution, serial arson, and certain burglaries and robberies.
In response to this backlash, adjustments have been made to bail laws in New York. The Gothamist reports “The new law pointedly addresses those cases. About 25 types of crimes are now eligible for bail that weren’t in January. They include second-degree burglary and any crime that results in someone’s death.”
And perhaps that’s the best we can expect as we attempt to balance public safety with the Constitutional rights of those who have been arrested and accused of a crime. However, from a legislative point of view, we seem to operate in a diametrically opposed fashion. As HLR puts it, “Congress is of two minds on sentencing reform. One mind [relying on the Sentencing Commission] is dispassionate and learned, deliberating for decades in search of a rational, comprehensive solution. The other [imposing mandatory minimums and sentencing ranges] is impulsive, reckless, driven by unquenchable political passions.”
Then again, there are also unintended consequences of bail reform. For example, in Baltimore, after legislative efforts to reduce the use of bail in a punitive manner, something odd, if not dubious, happened. Even as arrests went down significantly, Gary McIlhinney, with the Maryland Department of Public Safety and Correctional Services, said data showed “. . . more people are being held without bail, and it is taking them longer to go through the judicial system in order to have their cases adjudicated.” The bottom line was by not setting bail, judges were able to skirt the law regarding bail. As a result, people were in legal limbo, which was in reality, jail.
The answer to the problems besieging bail reform, then, synthesize two trends; the use of a robust database and vetted algorithms as a codified set of risk assessment tools, and the implementation of aggregated evidence and analysis to make any significant changes to bail reforms via congressional action or prison-wide bureaucratic changes.
Each of these two systems should act as a coherent feedback loop that helps continually refine how we adjudicate people. The Center for Court Innovation in New York, NY, also recommends the following a number of reforms. (There are too many to list here for the scope of this article, so please follow the link for more details.)
Meanwhile, let’s honor the legacy of Browder, and work to keep these tragedies from happening.
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