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City Bail System Punishes the Poor, Report Finds


bail bondsman

Human Rights Watch, known internationally for fighting degradation and institutional suffering among the people of Africa, Indonesia, Latin America and other developing areas of the world, has turned its sights to New York City. The organization has issued a report -- to be made public today -- on bail and arraignment practices in our Criminal Courts. Following a two-year study, the report concludes that bail results in the incarceration of poor people, almost all of whom are black or Hispanic and are charged with non-violent crimes.

Human Rights Watch has found that every year the bail system in New York City penalizes thousands of poor people with pre-trial detention when they are arrested and charged with minor crimes. In these instances, the judges often require a fairly small amount of bail money. But that often is still more than the individuals and families involved can afford. (Bail is intended to insure that defendants return to court for trial after their arrest or risk losing the money they have posted.)

The Price of Freedom

"The Price of Freedom: Bail and Pretrial Detention of Low-Income Non-felony Defendants in New York City," reports that 87 percent of defendants whose bail was set at $1,000 or less were jailed following their first court appearance for arraignment and remained incarcerated for an average of almost 16 days. Their crimes: shoplifting, prostitution, turnstile jumping, marijuana, possession of small quantities of drugs, trespassing. None were violent, and none involved weapons. In effect, these people served their sentences before ever been tried, much less convicted, since in many of the cases, the sentences eventually imposed would likely have been less than the time they spent at Rikers Island. These non-felony defendants awaiting trial constitute approximately one quarter of the population on Rikers.

The Human Rights Watch analysis found that the city could have saved $42 million in 2008 if the 16,649 non-felony defendants arrested that year who were unable to make bail of $1,000 or less had been released on their own recognizance or under some other alternative to incarceration. The report urges the city to create such an alternative. The cost of keeping a person confined in a city jail is approximately $73,000 a year.

According to Jamie Fellner, senior counsel at the U.S. Program at Human Watch who conducted the study and wrote the report, "Bail punishes the poor because they cannot afford to buy their pretrial freedom." Fellner found that judges sitting in Criminal Court tend to set bail at amounts that are unaffordable for indigent defendants.

"The pretrial incarceration of persons presumed innocent of minor crimes is a disproportionate and needless curtailment of liberty that is difficult to square with fundamental notions of fairness," Fellner's report concludes.

While the report did not provide a breakdown for the races of people affected by the bail policy it noted, "Although blacks and Hispanics combined constitute only 51 percent of New York City's population population, aggressive law enforcement in minority neighborhoods has led to them comprising 82.4 percent of all arrestees and a similar percentage of all criminal defendants."

It also cites city Department of Correction figures that 88 percent of people held on bail of $1,000 or less are black and Hispanic.

Plead Guilty and Walk

The only way a defendant charged with a misdemeanor or violation such as disorderly conduct can get out of jail quickly when a judge sets bail he or she cannot raise, is to plead guilty. Pleading guilty can mean walking out of the courthouse -- particularly if this is the first person's first arrest -- since many of the minor offenses do not carry any jail time, and the defendant has already served 24 hours by the time he or she appears in court. Others pleading guilty may get an Adjournment in Contemplation of Dismissal, meaning if they don't get arrested again within the next six months their case is automatically dismissed and sealed or they may receive a conditional or unconditional discharge.

Meanwhile, the defendant who asserts the presumption of innocence remains behind bars. Of the 19,137 non-felony defendants arrested in 2008 whose bail was $1,000 or less, 87 percent were not able to post that and had no one else who could. This helps explain why 99.6 percent of the convictions for misdemeanors are by guilty plea.

Fixing the System

The report posits, "Judges may intentionally set bail at a level beyond a defendant's means when they believe the defendant will not return to court if released. Human Rights Watch found, however, that "failure to appear is not a widespread problem."

To some extent, the report is critical of judges for failing to use alternative means of assuring that an individual will return. The statutory alternative most readily available -- and which the report encourages -- is unsecured appearance bonds. These require that the defendant or someone else, such as a parent, signs a promise to pay a certain sum of money in the event that the defendant does abscond. This, often used in federal courts, avoids the need for money upfront. Many judges are unfamiliar with the possibilities and also are overwhelmed with the number of cases during an arraignment session. The unsecured bond does entail some extra paperwork for the clerical staff, but is till one of the recommendations in the report.

The second recommendation is for the city to develop pretrial supervised release programs that presumably would monitor defendants or require them to report in. The cost of such programs would, Human Rights Watch concludes, be far less than the cost of incarceration. And they would not infringe on the constitutional presumption of innocence by permitting pretrial detention based on poverty.

Human Rights Watch also recommends that judges set bail in accord with defendant's actual financial circumstances.

Emily Jane Goodman is a New York State Supreme Court justice. She was interviewed for the Human Right Watch report and read it before its publication.

Cuomo Could Shrink the Prison System His Father Built


Cuomo
Photo by Rupert Ganzer
In one of his first acts as governor, Mario Cuomo helped negotiate an end to a hostage crisis at Sing Sing prison. Recently his son Andrew went to the prison to make a statement on criminal justice issues.

Gov. Mario Cuomo oversaw the largest expansion of the prison system in the state’s history. It is a legacy that Cuomo has said that he regrets. Now prison beds sit empty, as New York State, which faces a $9 billion budget deficit, continues to spend millions of dollars a year to staff and operate half-vacant human warehouses.

Enter the son, Andrew Cuomo. One of his first acts after winning election was to tour Sing Sing Prison, the site of his father’s first crisis as governor. Shortly after he was elected, Mario Cuomo faced a riot during which 17 guards were held hostage.

andrew cuomo
 

The elder Cuomo was deeply involved in the negotiations, and the hostages were eventually released unharmed. Robert Gangi, head of the Correctional Association of New York, a progressive group that advocates criminal justice reform, said he thinks Sing Sing may turn out to be the site of Andrew Cuomo’s defining moments, too, and could offer the son a chance to redeem his father.

At Sing Sing earlier this month, the governor-elect delivered a statement that was measured but firm.

"We are locking up fewer people. But then you need fewer facilities. And the shrinkage of that system is going to be something that has to be thought through and managed," Cuomo said.

Gangi found Cuomo's message encouraging "For better or worse, that part of Mario Cuomo’s legacy is that more prisons opened under him than any other governor. He has spoken out since and said that it is something he regrets. Perhaps Andrew can roll back the prisons and atone for his father's mistakes," said Gangi.

Cuomo’s stance on prison closures, as well as statements in policy books prepared during the campaign and his record of opposing the state's strict Rockefeller drug laws, give hope to progressive advocates who want to see Cuomo improve the physical and mental health care provided to prisoners, increase alternative sentencing and provide treatment centers for subtance abusers. But they have also been given pause by the makeup of the new governor’s public safety transition team with its heavy representation of prosecutors and people in law enforcement.

Managing the Transition

Cuomo has appointed former Mayor Rudy Giuliani, Police Commissioner Ray Kelly, former Manhattan District Attorney Robert Morgenthau, Republican U.S. Rep. Peter King and former deputy secretary for public safety Michael Balboni, a Republican who served in the Spitzer and Paterson administrations, to his team. (The rest of the members can be found here.)

Some say transition teams are fairly symbolic -- they offer newly elected officials an opportunity to appear to give voices to their detractors as well as supporters, while their inner circles make the real policy decisions. But transition teams do have tremendous power in recommending staffers to work in important agencies. Those staffers can set the tone for an agency.

Terry O’Neill, the head of the Constantine Institute, an Albany-based organization that studies public safety issues, said he is concerned that Cuomo has tapped people from the old guard who advocate the same old strategies.

"When I look at the top of the list, I see people who have a very uninspired public safety philosophy," said O’Neill. O’Neill says the committee lacks anyone who represents “community policing, community crime prevention, correctional alternatives and inmate re-entry programs. All of these things are important to people who live in high-crime communities," said O’Neill.

O’Neill sees Giuliani and Kelly as advocates of old ideas. "They are both stuck on the statistics-driven enforcement CompStat tactic that began as a simple management and accountability tool under Bill Bratton, Rudy's first police commissioner," O'Neill said. "This concept has become entrenched and rigid in the NYPD and has begun to result in serious pressure on precinct commanders to do what they have to do to maintain the illusion of ever downward-trending crime statistics. Neither of them would be likely to promote people who would give us the kind of state-of-the-art strategies that Bratton went on to pioneer with the LAPD."

Cuomo has been praised for including detractors and critics on his transition teams. Former state comptroller Carl McCall, the man who he ran against for governor before withdrawing in 2002, is a co-chair of the team. Giuliani has criticized Cuomo in the past and is seen as a political rival. Elinor Tatum, publisher and editor-in-chief of the Amsterdam News, who has been very critical of Cuomo’s relationship with the minority community, was named to his committee on economic development and labor. In fact, her paper differed sharply with the Giuliani appointment.

It recently ran an article titled "Giulani and Cuomo: Diversity With Lack of Respect" that questioned Cuomo’s commitment to diversity, given his choice of Giuliani to co-chair the public safety committee. Giuliani, the paper wrote, "was infamous for his lack of diversity in his administration and for failing to meet with black leadership."

Gangi said that he is unsure how to take the makeup of Cuomo’s public safety transition team, adding, "It could be that part of the group could focus on terrorism issues, not on prisons and law enforcement."

Policy Statements

Greg Berman of the Center for Court Innovation said he isn’t concerned by the transition team. "I would focus less on who is on the team and more on what he has written in his policy books," said Berman. In those volumes, Cuomo has said that he is committed to investing in programs for recently released prisoners, combating gun violence across New York and reorganizing the juvenile justice system.

A part of his "Plan to Revitalize Cities Across New York" focuses on reentry programs for offenders.

It would require state agencies to establish a unified set of goals and tools to assess progress toward training prison inmates for jobs and on matching inmates with stable housing prior to release. The state, the plan continues, should have programs to ensure inmates have all the tools they need to make a successful transition into regular life.

Cuomo has also promised to combat gun violence across the state by "making microstamping mandatory." Microstamping is a technology that can be installed on handguns that leaves individual markings on each bullet fired to make it easier to trace shells back to the gun that fired them. Gun rights advocates say the technology is unproven and the cost would be prohibitive for gun owners.

Cuomo also backs the "Ceasefire" initiative a program that has law enforcement officials, community representatives and social service providers work directly with gangs to reduce violence.

Beyond that, Gangi said, Cuomo's stop at Sing Sing sent a powerful message that he is considering how to transform the prison system. “He spoke about downsizing the prison system, closing institutions that no longer serve a function, and he sent a message to unions that have pressed so hard against governors who have tried to close prisons in the past,” Gangi said.

On top of that, Gangi points out that Cuomo was integral in advocating the reform of the Rockefeller drug laws.

"He took a very progressive position and displayed a nuanced view of the justice system and the particular injustices caused by these mandatory sentences," said Gangi.

The Cuomo administration also will have its hands full sorting out the state’s juvenile justice system. A federal report found New York’s juvenile justice system to be violent and dysfunctional. Studies have found that guards routinely use violence to punish and control youth and that detainees do not receive adequate therapy.

The head of the Office of Children and Family Services, Gladys Carrion, has been working on alternative sentencing for juveniles and keeping youthful offenders in their own communities.Advocates for young offenders support her efforts. Carrion’s work has reduced the number of juveniles detained in the state system and has closed 13 facilities.

Cuomo will have to decide whether to continue to support Carrion’s strategy without her when her term ends in December. Meanwhile, public employee unions have pushed back against the changes -- saying that it is unsafe to keep some of the more violent offenders in their communities and that upstate communities rely on jobs provided by the centers.

Steve Madarasz of the Civil Service Employees Unions says he and his union can’t wait for Cuomo to replace Carrion. "This situation is just a mess," said Madarasz. "Carrion has burned all her bridges. She has just gone about dismantling this system and is sending these youth back to their communities with no protections. In our opinion she can’t be replaced fast enough."

One particularly notorious facility, the Tryon Residential Center in Johnstown, is empty, and yet about 60 of the staff still report to work because of the law that requires one-year notification before closure.

Gangi said he would like to see that requirement reduced from 12 months to 3 months so prisons and detention facilities can be closed more quickly, thereby allowing the state to benefit from the savings much sooner.

Cuomo’s "Plan to Revitalize Cities Across New York" calls for the state to "establish an Innovation Accountability Board to oversee the state’s juvenile system and look for alternatives to detention, imprison only those juveniles who are a risk to public safety, improve the conditions of confinement, and look to merge and reorganize juvenile justice detention centers."

When asked what he expected from Cuomo, who has vowed to battle unions on cuts and has expressed interest in trimming understaffed prisons, Madarasz was uncertain. "We have no idea what to expect until he is actually in office," he said.

The legislature and governor also will confront the question of whether to expand the New York's DNA database. Outgoing Gov. David Paterson has pressed to expand the scope of the database to include all penal code violations -- not just felonies and more serious misdemeanors. There have been concerns about the reliability of DNA evidence and how it is used in solving crimes. Republican attorney general candidate Dan Donovan and Cuomo’s purported favorite Democratic attorney general hopeful, Kathleen Rice, both supported Paterson’s bill.

When asked earlier this year which legislation he supported a spokesman for attorney general-elect Eric Schneiderman said, "The senator supports both pieces of the puzzle."

By Talking about Sexual Violence, Grassroots Effort Aims to Prevent It


Photo by Ken Lu

Correction: This article originally overstated the effects on budget cuts on treatment and prevention programs. The article now has been corrected.

It took Harriet Lessel a over a decade of lecturing high school students about sexual violence to realize that, while her work was important, it was "barely a drop in the bucket."

"We have been raising awareness about sexual violence this way since the 1970s and sexual violence rates have remained pretty much the same," said Lessel, the executive director of the New York City Alliance Against Sexual Assault. "It was clear that a new approach was needed. ... We needed something deeper than these one- or three-off lectures at high schools."

Indeed, while crime rates have fallen over the past two decades in New York City, sexual violence remains such a pervasive public health issue in the city that advocates have begun to call it a "silent epidemic."

Despite this, in June the New York City Council unexpectedly voted to cut all funding -- over $300,000 annually -- for city programs that help victims of sexual assault, forcing rape crisis centers to scale back programs they consider vital. For example, St. Luke's-Roosevelt Hospital Center had to cut back its program giving free treatment to male victims of sexual assault, the only such program in New York, and the Kingsbridge Heights Community Center in the Bronx was forced to downsize its free and long-term child sexual abuse treatment and prevention program.

The Mother of Invention

The funding problems and the persistence of sexual violence have caused the city's rape crisis centers to try a new approach. They are banding together to launch Project Envision, an unprecedented citywide intititive that seeks to prevent sexual violence before it happens by attacking its root causes. Spearheaded by the NYC Alliance Against Sexual Assault, the effort is the first in the U.S. in which a city's rape crisis centers join forces to focus not only on treatment, but grassroots activism to affect social change.

The project approaches sexual assault as a public health issue with clear causes that can be isolated and controlled.

"We often use the analogy of rescuing people from drowning in a river. Up until now, we just stood on the banks and threw lines to people who were already in trouble," said Cathleen Cogswell, an employee at the alliance. "Now we are walking upriver to find and deal with what is causing this in the first place."

The Level of Violence

A 2008 study by Columbia University and the NYC Alliance Against Sexual Assault found that 16 percent of New York high school students have experienced sexual violence at some point in their lives. For female adolescents in the city, the rate rises to 25 percent. Youth in neighborhoods such as Central Harlem and Brownsville, Brooklyn experience even higher rates, with 60 of 98 participants in a study of severely distressed households in these areas having experienced forced sexual contact by the age of 13.

The cost to victims of sexual violence is tremendous. Most suffer depression and post-traumatic stress disorder directly resulting from an encounter. Although law enforcement could vastly improve its handling of sexual assault, it is one of the most difficult crimes to crack down on, as the vast majority of sexual assaults are never reported to authorities, and only a tiny fraction of rapists are ever charged for their crimes. Contrary to common belief, most victims of sexual assault are in some way acquainted with their assailant.

Starting the Conversation

Borrowing strategies from prevention efforts like the anti-smoking campaign and clean-drinking water initiatives, Project Envision seeks to correct social norms that enable rape and other forms of sexual violence by influencing discourse on the community level.

"The idea that rape is inevitable, the continued blaming of victims and the fact that people are afraid to talk about it -- this all needs to change before we can make real headway here," Billye Jones-Mulraine, a member of Project Envision’s South Bronx community effort, said. "It is an issue that still remains very much in the shadows. The fact that it’s not talked about really seems to keep it alive as a problem."

Rape crisis centers have not ignored prevention. Essentially, though, their strategy has been to send experts into communities, hold forums and lectures with young people and move on to the next community hoping to have made an impact. Project Envision hopes to fundamentally shift this approach by making the community members the experts, who can in turn, train fellow community members, thereby solidly entrenching the issue in the local conversation.

The NYC Alliance Against Sexual Assault began work on Project Envision in 2007. Since then, it, has since launched three pilot projects in the South Bronx, Williamsburg and the Lower East Side. The project is in the early stages. So far, it has focused largely on t how change the discourse at a community level, and how to design and implement such a broad effort.

"Parts of this are very abstract," said Deesha Narichania, a rape crisis worker in Bushwick and member of the Williamsburg pilot program. "People don't really know how to wrap their heads around it because it's less concrete than intervening with victims, which is what we’re used to."

The project has spent much of its time trying to assess awareness of and attitudes about sexual violence in various communities. The project's members have taken to the streets to talk with pedestrians about their knowledge of sexual violence. Focus groups gathered more detailed information from longer conversations and exercises.

Making It Local

"This is very important that our plans are being shaped around these perceptions -- the community's perceptions," said Laura Fidler, employee at the Alliance and member of the Williamsburg pilot program. "It is what makes this community driven -- that this is by the community and for the community."

Envision members used this information to design action plans that reflect the specific community’s strengths and weaknesses. For example, researchers in the South Bronx found cycles of abuse that are passed from generation to generation are a commonly perceived cause of sexual violence in that community. Thus the South Bronx project will include an effort to reinforce healthy relationships between parents and children.

The Williamsburg coalition identified verbal sexual harassment as a major problem, so it will focus on educating young men and boys on the negative effects of such behavior -- that the mindset that enables verbal harassment also leads to rape and other forms of sexual violence.

The research unexpectedly turned out to have the extra benefit of garnering local support and recruiting members. "We found that it was also this effective community mobilizing tool. People that participated in our focus groups turned into important members of our project and in some cases leaders," said Fidler. "It was definitely challenging getting people who were rushing to catch a bus or subway to talk to us, but we did have a number of people stop and thank us for starting the conversation in Williamsburg. And that's what this is about -- starting the conversation."

Each pilot project is currently building partnerships with community organizations that they believe can have a deep and lasting impact on the area's residents. Like in the anti-smoking campaign, Envision’s strategy plans to work with existing organizations. Schools and afterschool programs are one component of this, but Envision seeks to cast a wider net that includes religious, cultural and neighborhood organizations. Each of these organizations has leaders who already hold sway in their communities. Envision hopes to make these leaders experts on sexual violence.

"We will figure out how to support and train the community leaders in this work until they will not have to rely on us at all," Narichania said. "We want this to stay in the community, not just with us."

In 2011 Envision plans to begin turning its work into concrete community programs in the three pilot neighborhoods. Members recognize that implementation too will be long process involving much trial and error.

"This has just never been done before," Harriet Lessel said. "We are not only continuing to treat victims of sexual violence as best we can, but we are now recapturing that activism that started the women's movement in the first place. We have arrived at a point where rape crisis programs are pretty expert at treating victims, but wouldn't it be better if there were fewer of them?"



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