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Increasing Number of Cities and States Enact Bail Reform – but is it Enough?

by Joe Watson

Bail reform did not happen soon enough to save the life of Walter Scott, a forklift operator whose fatal shooting by a police officer intensified a national debate not only on the use of excessive force by the police but also on the unnecessary jailing of nonviolent, non-serious offenders.

In April 2015, Scott was pulled over – purportedly for a broken tail light – by police officer Michael T. Slager in North Charleston, South Carolina. Scott, a father of four, was aware that he was behind on child support by more than $18,000.

“He had trouble keeping up with the payments, that’s all,” said Walter’s older brother, Rodney Scott. “He knew he would go to jail.” [See: PLN, Sept. 2016, p.1].

More importantly, Walter Scott would have likely stayed behind bars, unable to bail himself out, just like hundreds of thousands of other people jailed in the U.S. each year. Having been arrested three times since 2008, Scott feared the upheaval that even a short stint in jail can create: the potential loss of his job, as well as separation from his family.

So after he was pulled over, an unarmed and desperate Walter Scott bolted from his car and ran. The scene, captured on dashboard and cell phone cameras, showed Scott running into a nearby residential area with Slager in pursuit.

When Slager caught up with Scott and was about to cuff him, Scott eluded his grasp and again tried to flee. This time, however, Slager drew his gun and shot Scott in the back multiple times, killing him. He then dropped his Taser next to Scott’s body in an apparent attempt to justify the shooting by claiming that Scott had tried to take the stun gun.

“That’s one of the most disturbing things I’ve ever watched,” said Mitch Lucas, Charleston County’s assistant sheriff, who regularly drives past the grassy lot where Walter Scott was gunned down.

When video footage of the incident was posted online and shown nationally, Slager, 35, was arrested and tried for Scott’s murder. After an initial mistrial, Slager pleaded guilty in May 2017 to a federal charge of violating Scott’s civil rights; in exchange, a state murder charge was dropped. He has not yet been sentenced.

Largely as a result of Scott’s death, Charleston County began to screen jail detainees to determine whether their bonds should be set high or low, and who should not have to pay anything to be released. In doing so, the county joined an increasing number of jurisdictions across the country, including New York City, Chicago and Los Angeles, in the bail reform movement. Another example is Illinois – in February 2017, the state introduced proposals that could “eliminate bail for first-time, nonviolent offenders or abolish cash bail,” according to a report by the Pew Charitable Trusts, a non-profit research organization.

Being arrested is a volatile, traumatic event – almost like a “hurricane,” as Lucas put it – experienced by over 11 million people who are booked into city and county jails every year. Behind the push for bail reform is the “growing recognition that cash bail is inequitable and isn’t effective in assuring the people who are accused actually go to court to answer the charges,” said Eric Sterling, executive director of the Criminal Justice Policy Foundation. He noted that “a system where you are presumptively jailed unless you can buy your freedom is a form of pretrial punishment.”

According to the Prison Policy Initiative, on any given day there are about 630,000 people held in local jails; 443,000, or around 70%, have not been convicted of a crime and are awaiting trial. Pretrial detainees often remain incarcerated because they cannot afford to make bond. As a result, many feel pressured to take a plea deal, even if they are innocent, rather than remain in jail for months or even years before they go to court.

“Jails are where the problems of mass incarceration begin,” observed Julian Adler, director of research-practice strategies at the Center for Court Innovation. “Prison reform is very important but if you don’t focus on how America uses and oversees jail, you’re really missing that threshold moment where mass incarceration begins.”

Addressing our nation’s over-reliance on imprisonment will require two core changes within law enforcement and the court system, experts say. First, the police must stop arresting people for minor, nonviolent offenses. And second, cash bail must be relaxed or entirely eliminated in certain types of cases. [See: PLN, May 2017, p.26].

The bail system disproportionately and adversely affects the poor as well as people of color, who are both overrepresented in our criminal justice system. For example, the Vera Institute of Justice reports that although blacks compose just 13 percent of the U.S. population, they are incarcerated at four times the rate of their white counterparts. This disparity is the root of the bail system’s racially disproportionate impact. For example, black pretrial detainees are less likely to be released on bond than non-blacks, and according to the Pretrial Justice Institute, black male defendants received 35 percent higher bonds than their white counterparts, based on 2016 data.

While most people assume bail is a standard component of the justice system, only two nations use a for-profit cash bail system: the United States and the Philippines. The bail system originated in England during the Middle Ages and was intended to ensure that defendants were not held indefinitely without trial. Of course, just as in 21st century America, the magistrates of Old England began abusing their power to detain people at will, and thus in 1689 the English Bill of Rights declared that “excessive bail shall not be required, nor excessive fines imposed.” Later on, the U.S. adopted the same language for the Eighth Amendment to the Constitution.

However, as jail populations have swelled over the last 40 years, bail has become – as the New York Times Magazine called it – the “grease that keeps the gears of the overburdened system turning.” In New York City alone 45,000 people remain in jail each year due to their inability to make bail, and as noted above the threat of extended time behind bars persuades defendants to accept plea bargains. Many of those plea deals occur at arraignments, the first stage of the court process. New York City courts processed 365,000 arraignments in 2013, with less than 5% of those cases making it to trial.

“If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed,” the New York Times Magazine concluded in an August 2015 feature story on bail reform. “By encouraging poor defendants to plead guilty, bail keeps the system afloat.”

But defendant Kalief Browder was an exception – he never gave in to the pressure to plead guilty. Browder, a sixteen-year-old from the Bronx, was arrested in 2009 on suspicion of stealing a backpack. His bail was set at $3,000 on a felony charge of grand larceny, which was more than Browder or his family could afford. So he spent over 1,000 days locked up in the infamously brutal Rikers Island jail complex, where he was assaulted by a guard and served 800 days in solitary confinement.

Yet Browder insisted he was innocent, and indeed the case against him was dubious. He rejected an offer to plead guilty to two misdemeanors that would have resulted in his immediate release. He continued to refuse a plea bargain even as prosecutors subverted New York’s speedy trial laws and delayed his case month after month.

Only after he had spent nearly three years in jail for allegedly stealing a backpack did Browder finally go home to his family – once the charges against him were dropped.

When his story was told in a 2014 New Yorker article, politicians and celebrities, including U.S. Senator Rand Paul and rapper Jay Z, spoke out in support of Browder and advocated for justice reform. But Browder had a difficult time coping with the trauma of his prolonged incarceration. His mother, Venida Browder, said he “tried to lead a normal life but after being beaten, starved, being in solitary confinement for so long, that would take a toll on a grown man, let alone a child.”

In June 2015, Kalief Browder hanged himself with an air-conditioner cord from an upstairs window at his family’s home in the Bronx.

“I wish, I deeply wish, we hadn’t lost him – but he did not die in vain,” New York City Mayor Bill de Blasio said shortly after Browder committed suicide, before announcing an initiative in the summer of 2016 to reform the city’s bail practices.

“Money bail is a problem because, as the system currently operates in New York, some people are being detained based on the size of their bank account, not the risk they pose,” de Blasio stated. “This is unacceptable. If people can be safely supervised in the community, they should be allowed to remain there regardless of their ability to pay.”

The mayor’s initiative, which was expected to cost the city about $18 million, included a “supervised release” program that would allow a relatively small number of defendants, accused of nonviolent, low-level offenses, to be released from jail; they would have to check in with caseworkers by phone or in person. When the initiative was first launched after Browder’s death, it was estimated that up to 3,000 low-risk defendants, most of whom were being held at Rikers Island, would be freed and placed under court supervision while awaiting trial.

Bail reform was just one piece of a $130 million plan to improve New York City’s criminal justice system – a plan that had begun in December 2014. In addition to reforming its bail practices, the city also expanded public health services for people with substance abuse and mental health problems by enlisting the help of non-profit organizations.

De Blasio’s supervised release plan was reportedly modeled on pilot projects that had been implemented in Queens and Manhattan. Since 2009, when supervised release began in Queens, 87% of defendants returned to court and fulfilled all of the program’s requirements while on release.

Nancy Fishman, a project director at the Vera Institute, said jails in Kentucky, Milwaukee and Portland have had success with similar programs. She added that in Washington, D.C., where cash bail has been eliminated in most cases since the 1990s, almost 90% of defendants return for their court dates. She expects comparable results in other cities where bail reform is occurring, especially in New York.

“You can get a lot of people out of jail who don’t need to be there,” she noted. “There’s a real opportunity to go big in New York.”

But some have argued that de Blasio’s initiative isn’t “going big” at all. According to Peter Goldberg, executive director of the Brooklyn Community Bail Fund, a nonprofit that has bailed out scores of poor defendants since it launched in April 2015, the mayor’s limited bail reform was insufficient. “If Kalief Browder’s death wasn’t in vain, it won’t be because of the proposals we’ve seen so far from the city,” he told The New York Times.

What Goldberg and other advocates recommend is the total elimination of cash bail, which would require new laws to effectively prohibit keeping people in jail due to their poverty. Similar statutes were enacted in Washington, D.C. in the 1980s and 1990s, and defendants are routed through the district’s Pretrial Services Agency, which evaluates them for pretrial release as well as substance abuse and mental health needs.

“Bail is supposed to make sure that you show up for court,” said Leslie Cooper, deputy director of D.C.’s Pretrial Services Agency. “How much money you have in your pocket shouldn’t determine that.”

Colorado, Illinois, Kentucky and Oregon have enacted statewide bail reforms within the past four years. In November 2016, voters in New Mexico adopted a constitutional amendment that, among other provisions, bars defendants from being kept in jail “solely because of [their] financial inability” to post bond.

And New Jersey’s Bail Reform and Speedy Trial Act went into effect in January 2017; the legislation requires courts to use a risk assessment tool to determine whether defendants should be freed on pretrial release rather than having to make bail.

New Jersey public defender Joseph Krakora lauded the reforms. “It eliminates the inherent discrimination of a monetary bail system. Judges are not locking people up because they’re poor and can’t come up with modest amounts of money,” he stated.

Further, as of February 2017, lawmakers in Arizona were reviewing four bills to reform that state’s bail system; the bills included “risk assessments of defendants, enhancing judges’ ability to waive court fees for low-income offenders, and spelling out under what circumstances a judge may withhold bail,” according to the Pew Charitable Trusts. Bail reform legislation has also been introduced in California and Texas.

Yet Goldberg has criticized bail reforms that do little to inspire real change. “Robert Kennedy, when he was attorney general, raised exactly the concerns with bail we’re talking about now,” he said. “Fifty years later, we’re still having the conversation. We can’t be satisfied with cosmetic fixes. And the truth is, even meaningful bail reform is just the beginning. The real work is asking why we’re arresting so many people on low-level offenses in the first place and why so many of them come from poor black and brown communities.”

But the main opponents to bail reform efforts are bonding companies and the insurance firms that back them, which reap enormous profits from the existing cash bail system. 


Sources: Christian Science Monitor,,,, New York Times Magazine,,,,,, Wall Street Journal,