How Will De Blasio's Bail Reform Actually Work?
FRIDAY, AUGUST 28, 2015

In a Gothamist article on bail, Tina Luongo, Attorney-in-Charge of the Criminal Practice, says that the first big issue is what brings people into the system in the first place?

She continued: “What are we arresting people for? We don’t need supervised release for quality of life crimes. Those frankly shouldn’t be in the criminal justice system in the first place.”




Gothamist
How Will De Blasio's Bail Reform Actually Work?
By Raven Rakia
August 26, 2015

After news of Kalief Browder's suicide, many advocates called on Mayor de Blasio to fix New York's draconian and unfair bail system. On July 8th, Mayor de Blasio responded by announcing a new bail reform for New York City's court systems. People charged with certain misdemeanors and nonviolent felonies would have the option of supervised release—instead of being remanded to Rikers if they couldn't pay bail.

The supervised release program will only be open to 3,400 defendants a year throughout the five boroughs. Which puts this statistic, reported by the New York Times, in perspective: the reform will only reduce the population in Rikers by 200 detainees at any given a time.

With a system that set bail for over 2,400 misdemeanor charges and 4,600 low-level (both violent and nonviolent) felony charges in 2013, Mayor de Blasio's new reform will barely make a dent in changing the way New York City's criminal justice system operates.

For many of the people charged with low-level crimes, they will still have to face a bail amount they will not be able to pay. In all, around 45,000 people are sent to Rikers each year because they cannot afford to post bail.

Mayor de Blasio's reform also stops short of removing the bail barrier for low-level offenses across the board. The judge will ultimately make the decision as to whether or not the defendant will be placed in the supervised release program or at Rikers Island jail, in the event he cannot post bail. The judge is also the only one with the authority to remove the defendant from the program and set bail.

“The problem with our bail system is not that we don't have a supervised release program. The problem is that judges aren't following the law,” Justine Olderman, the managing director of The Bronx Defenders' criminal defense practice told Gothamist.

“The law provides for 9 different forms of bail, but judges only set the two more difficult forms of bail for poor people to pay—cash and insurance company bond—even though studies show that other forms of bail are just as effective in ensuring people's return to court,” Olderman said.

“They also don't tailor the amount of bail to a person's financial resources even though the law requires them to consider financial resources when setting bail...You will almost never see judges asking about a person's financial resources or setting bail in an amount that is less than $500 or $1,000 even though that is out of reach for many people in the criminal justice system.”

The pilot program for supervised release currently operates in Manhattan (since 2013) and Queens (since 2009) and is run by the New York City Criminal Justice Agency (CJA), a not-for-profit corporation. Since CJA runs the pilot progam, they are expected to win the bid from the city to run the supervised release program citywide when it begins next year. Their current program gives some insight on what de Blasio’s reform might look like.

CJA focuses on nonviolent felony offenses—defined by New York Penal law 70.02. Currently, there are 1,100 annual slots for the supervised release program. During the year of 2013, the program was underutilized: just 664 people of 1,100 slots were in the program. On a monthly basis in 2013, there were roughly 130-145 people in the program in Queens and 24-44 people in the program in Manhattan, according to CJA's 2013 Annual Report Court supervisors from CJA sit on arraignments to screen defendants and find potential clients for the program. They will ask a few questions, based on their risk assessment that attempts to determine if the defendant is likely to appear to their court dates. If the defendant is qualified for the program, they'll ask the defender's lawyer if they would prefer the supervised release program. With the lawyer's consent, the option is then brought up to the judge during the court hearing and the judge makes the decision.

Defendants in the program are required to report to their assigned counselor at CJA's offices twice a week in person and once a week via a phone call. After a month, Mari Curbelo, the Director of Court Programs at CJA, says the supervision may ease if the person has met the requirements and has “other pro-social activities in the community.”

CJA's court supervisors report to the judge at each court hearing with an account of how many meetings the defendant has made (or missed) since the last court date. CJA also refers defendants to substance abuse and mental health treatment on a voluntary basis (defendants are not required to take treatment while in the program), but says attendance at treatment programs is not included in their report to the judge.

Toni Jordan has been in the supervised release program monitored by the Criminal Justice Agency for five months. She said both weekly check-ins (CJA supplied her with a MetroCard) and random drug testing were required—although the drug testing results are never included in the court reports to the judge.

She considers the program a benefit and one that she appreciated, as it often meant having another person to stand up for her in front of the judge and of course, it kept her out of Rikers.

“You're not stressed out [about] how you're getting bailed out. You don't have to call any family members or put yourself in any financial situation,” Jordan said. But she acknowledges, “of course, the NYPD [still] needs to change.”

Many reform and legal aid advocates are skeptical of the program and fear it will ultimately expand the number of people put through criminal justice system by placing people in the supervised release program that shouldn't be supervised or going through the system at all.

Curbelo and Jerome McElroy, CJA's Executive Director are aware of this concern, and say their program is not intended for people who should be released on recognizance (ROR).

“It's always been a concern for this agency to not widen the net,” Curbelo said. “We don't want to supervise people..[who] should have been straight released without conditions because research has shown that if you over-condition people that are low risk...[the barriers] may make it harder for them to succeed.”

The issue is usually avoided since the court supervisors need the consent of the defendant's lawyer to consider the defendant for the program—lawyers will often decline if they believe their client will be released without bail.

Still, the Mayor's initiative means the supervised release program would expand to misdemeanors, charges that are more likely to get an ROR, and how the upcoming program will look in practice remains to be seen. The Mayor's Office of Criminal Justice said they will be coming up with their own risk assessment program to determine which defendants will be eligible.

Of course, the supervised release program will not be open to everyone. CJA's current risk assessment program to determine who is eligible for the program consists of a weighted point system with five questions. The most weighted question is whether the defendant's bench warrant count is at zero. Other questions include: does the defendant have a working phone? Does the defendant have an NYC address? Is the defendant employed, in school or in a full-time training program? Does the defendant expect someone at arraignment? And does the defendant have any open cases?

Based on this risk assessment, what populations are most likely to be left out of the reform? The homeless population is at a greater risk of not being eligible. Although, CJA says that a specific homeless shelter can be considered as an NYC address, if verified. People who have had multiple run-ins with the law or are in constant contact with the police are also at a disadvantage (although they are not as automatically excluded) as the risk assessment looks negatively on open cases and bench warrants.

Emily Dindial, a criminal lawyer and member of the Jails Action Coalition, thinks supervised release is an unnecessary requirement.

“In theory, this initiative—which recognizes that people should not be held in jail simply because they can't afford bail—seems positive. However, it would also subject those who can't afford bail to a supervised release. This is not a solution,” Dindial said.

“The purpose of bail is to secure a court appearance, and because we know that the vast majority of people will voluntarily return, there is no real need for either pre-trial detention or mandated supervision on this scale.”

Others, including the Chief Judge of the State of New York, Jonathan Lippman, believe we need to look at how people are getting into the criminal justice system.

“The first big issue that we have to address [is]...what brings people into the system in the first place? What are we arresting people [for]?” Tina Luongo, the head of Legal Aid Society's Criminal Defense Practice told us.

“We don't need supervised release for quality of life crimes. Those frankly shouldn't be in the criminal justice system in the first place.”

Police Reform Organizing Project's Robert Gangi agreed. “The main reason there are so many people on Rikers Island who don’t need to be there is because the NYPD arrests people on frivolous charges, on bogus charges and the courts put those people through the system and for some of them, set bail and they wind up on Rikers,” Gangi said. “If Mayor de Blasio is serious about this problem he will direct NYPD to change [their] arrest practices which are now blatantly racist and target low-income people of color.”

In response to these critiques, Monica Klein, a spokesperson for the Mayor's Office, told us, “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. That’s why this administration is implementing a series of reforms to detain fewer people pre-trial and ensure that those detained are not waiting years for their day in court.”