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The Instantaneous Injustice of Bail

The Instantaneous Injustice of Bail

Postby smix » Thu May 25, 2017 12:47 am

The Instantaneous Injustice of Bail
The American Prospect

URL: http://prospect.org/article/instantaneo ... stice-bail
Category: Prison
Published: May 1, 2017

Description: For Chicago's poor, who can't afford attorneys, bail hearings often don't last longer than a few seconds—and may keep them in jail for want of a few hundred dollars.
On the afternoon of June 4, 2016, a pleasant Chicago Saturday, Carmelita Woods was the last family member to come out of Cook County Central Bond Court. Her daughter, Bakirah, had been arrested the night before and had been the last person at bond court to get a hearing that day. The hearing had lasted ten seconds. No public defender had been present for the hearing. Bakirah remained detained for six days. Her six days in custody, she told me, was the most traumatic experience of her life. And the major problem with her bond court hearings, she said, was that she could not hear or understand anything. “Nobody explains anything,” Bakirah says. “I hear my name called, I come out, somebody says a few words, and then somebody shoves me to the back and that’s it. You get back in there, there’s a hundred women asking each other what the judge said and what the words meant. … We’re like roaches. “How is there any justice in bond court?”
BOND COURT IS THE first court where one gets a hearing after an arrest. The hearing is intended to decide bond, otherwise known as bail: the amount of money a person needs to post to be released before their trial. In Cook County at least, it is a bewildering process. In the cavernous halls of the George N. Leighton Criminal Courthouse, confused and worried family members, predominantly African American or Hispanic, are a common sight. Many sob in a corner, worried sick that the bail amount decided will be too onerous. By far the most common complaint is that the hearing went by so fast that they didn’t even catch what the bond decision was. Bond court and pretrial detention in Cook County have long been controversial. President Obama’s Department of Justice essentially took the position that holding the indigent before a trial because they can’t afford bail is unconstitutional. But in Cook County, the vast majority of people held in Cook County Jail—the largest single-site jail in the country—are those held pretrial, largely because they are unable to post bail. This is true nationally as well, but according to Cook County Justice Watch, in early October 2015, fully 95 percent of inmates in Cook County Jail were pretrial. The national average was 60 percent. Recently, following the introduction of legislation to prohibit the use of cash bail in Illinois, the Cook County State’s Attorney Kim Foxx agreed to release detainees held for nonviolent offenses if they could not pay $1,000 for bail. The move, however, affects only a few dozen of the 7,400 inmates in Cook County Jail. When speaking to critics of bond court, the phrase heard most often is “assembly line.” On my first visit to bond court, it became obvious why. “Assembly line” recognizes a central characteristic of bond court: The entire process that allows so many inmates to remain in jail even before their trial hinges on the few seconds they get in front of the judge at their bond hearing. Across ten bond court–watching sessions and 276 hearings that I observed over three months, those few seconds began to fit a clear trend. Across all judges observed, the slim minority of defendants with private attorneys got an average of 166 seconds in front of a judge. By contrast, the vast majority of people with public defenders got an average of a mere 22 seconds. When I informed Cara Smith, a representative of Cook County Sheriff Tom Dart, about my findings, she agreed that despite recent changes supposed to improve the bond court system, defendants still got far too little time in front of judges. The difference between the quality and duration of conversation between judges and private attorneys and those between judges and public defenders is glaring. Private attorneys often represent their clients with full-bodied defenses, vigorously and consistently calling their guilt into question. When a public defender speaks, on the other hand, in the vast majority of cases, he or she mentions solely the defendant’s age, number of children (if any), whether they went to high school or college, and where they work. A bonus second is granted if the defendant is a “lifelong resident of Chicago.” As has been noted for years, the process also depends heavily on which judge is presiding over the courtroom that day. Judges render predominantly three types of bond decision: a cash bail where the defendant must post 10 percent of the amount decided (by far the most common); a non-cash bond where a defendant is released without needing to pay bail; or a release with electronic monitoring, an ankle bracelet amounting to house arrest that can also be removed by posting a set amount of money. But because there are no mandatory guidelines specifying what bond is appropriate for which offense, each judge has complete discretion—resulting in large discrepancies among judges over cash bonds or non-cash bonds, the bond amount set, and (especially pertinently nowadays) how often they appeal to a new risk assessment tool.
IN THE FALL OF 2013, after much publicity about overcrowding in Cook County Jail as the average daily population exceeded 10,000, as well as calls for change from Sheriff Dart and Cook County Board President Toni Preckwinkle, the Illinois Supreme Court conducted an audit of Cook County bond court with a particular focus on “pretrial services,” which provide a “risk assessment” that a judge can take into consideration when issuing a bond decision. The Supreme Court report was particularly scathing. It acknowledged the disparities between judges and concluded that “in practice, [risk assessment] has become largely aspirational.” Since then, a highly lauded new risk assessment tool, the Public Safety Assessment (PSA), recommended by the court’s report, has been implemented. The purpose, proponents argue, is to identify defendants who pose little or no threat to public safety and thereby provide judges with more information on which to base their decisions. The PSA, a tool created by the Arnold Foundation, has been applied in at least 29 jurisdictions. It considers “risk factors”—demographics, current offense, criminal history, substance use, mental health, education, employment, residence, and community ties—and determines two scores on a six-point scale. The scores indicate how likely a person is to fail to appear in court, and how likely that person is to engage in new criminal activity. The PSA has been implemented in jurisdictions as broad as the entire states of Arizona, Kentucky, and New Jersey, as well as the cities of Chicago, Phoenix, and Charlotte. In Cook County, it was welcomed heartily. In February of last year, the Community Renewal Society, a Chicago-based faith-based organization that works on issues of poverty and racism, released a report that concluded that in 2015, the PSA was “being used to assess the risk of the vast majority of all defendants that go through Cook County Central Bond Court,” despite the fact that full implementation of the PSA wasn’t to go into effect until March 21, 2016. However, following reports that tools like the PSA can employ racially biased software, questions emerged. What, then, has the PSA changed in Cook County? After observing five of the six rotating judges who conduct bail hearings, it appears not much. Only one judge—Peggy Chiampas—actively seemed to have read PSA reports, referring to them in almost all bond hearings (with the exception of those for defendants from the Department of Corrections: a sizable proportion of defendants to whom pretrial services apparently does not have access). When the other judges presided, however, any mention or consideration of the PSA scores remained absent from bond court proceedings, nor were its recommendations seemingly taken into account. Obtained through a Freedom of Information Act request, a report by the Sheriff’s Justice Institute concluded the same thing. The report noted that in more than 1,574 cases between early February and late March 2016, “collectively judges rarely administer[ed] the … recommended monitoring level” advised by the PSA. The report also acknowledged the enormous differences in the ways defendants with private attorneys are treated in comparison with defendants with public defenders. Regarding an unidentified judge, the report stated, “In Judge B’s courtroom when a defendant was represented by private attorney and the defense explicitly stated the dollar amount their defendant could post, that bond amount stated was granted 70 percent of the time.” “When a defendant was represented by a [public defender] and the defense explicitly stated the dollar amount, the bond amount stated was granted 1 percent of the time.”
WITH JUDGES RARELY referring to the PSA, has anything changed at all? Some, including the Community Renewal Society, claim that there has been a steep increase in the proportion of defendants receiving non-cash bonds. According to its report, in 2015, 61 percent of defendants received non-cash bonds, compared with 20 percent in 2011. The sheriff’s office disputes those numbers. “Our information is not that there’s been a tremendous increase in [non-cash bonds],” Cara Smith tells me, although there has been “a tremendous increase in the use of electronic monitoring.” Recent data from the chief judge’s office supports her assessment. Just in the first five months of 2016, the total percentage of defendants released on non-cash bonds was 24.4 percent—decidedly not a steep increase from the 20 percent in 2011—while 26.9 percent were released on electronic monitoring. But by far, most still got cash bonds: 44 percent. Many dispute that the increase in electronic monitoring is a step forward in the administration of justice. Defendants and their family members often criticize it harshly. Sharlyn Grace, a co-founder of the Chicago Community Bond Fund, a revolving fund that posts bond for people charged with crimes in Cook County, argues that electronic monitoring merely replicates the financial incentives of the cash bond. One of the people for whom the fund recently posted bond, Grace said, had an electronic monitoring bond that required the payment of $25,000 if he ventured outside the perimeter of his home. “He was working two jobs and then he got electronic monitoring. The conditions were so onerous that he was let go of both his jobs. And while on electronic monitoring, he didn’t have movement for any social activity—like attend church, be a member of his community, or be in a position where he could be rehabilitated.” Ali Abid, formerly of the Chicago Appleseed Fund for Justice, a legal advocacy group that argues that bond discriminates on the basis of financial means by detaining only the indigent, tells me that oftentimes people on electronic monitoring don’t fully understand the terms and conditions they must observe, making it all too easy to violate them. “And if you violate the terms of electronic monitoring, that’s a Class 3 felony,” he said. “Sometimes, paying $200 for bond is easier for people than electronic monitoring.”
THE SUNDAY AFTER Bakirah Woods’s first hearing, Tyjuan Coleman had his bond court hearing in Judge Chiampas’s courtroom. Coleman, unlike the vast majority of defendants on any given day, had a private attorney. Chiampas, the only judge I have observed to do this, asked Coleman’s family to stand and asked them how much they could post. They replied $2,000. She then set the bond at $20,000. The $2,000 was sufficient to ensure Coleman’s release. I met with Chiampas two days after first observing her. I asked her about the stark difference between her and her fellow judges in how often she used the PSA tool. “I can’t speak for all judges, but it is one factor I consider among many and it is an important one,” she said. “I take the PSA tool into consideration in every case.” How did she feel about the massive variation among judges? What could be done to standardize the wildly inconsistent bond amounts? “Every judge is individual and makes decisions based on the cases in front of them,” she replied. “Discretion lies with each individual judge.” When I informed Chiampas that people with private attorneys seemed to get more time than people with public defenders, she disagreed. “Their cases are not treated any differently. Defendants do not get mere seconds in front of a judge. It is on a case-by-case basis.” But over four visits to Chiampas’s courtroom hearings (17 defendants with private attorneys and 97 with public defenders), the average time for defendants with private attorneys was 150 seconds. The average time for defendants with public defenders was 25 seconds. Further, despite her heavy emphasis on the PSA, Chiampas tended to mete out more cash bond decisions than her fellow judges. Thus, a troubling conclusion: Even with the use of the brand-new validated PSA, little seems to have changed with the state of pretrial detention in Cook County.
IN THE PSA LARGELY fails to reduce pretrial detentions, that is no small matter. A wealth of research has demonstrated that pretrial detention actually creates convictions by vastly increasing the incidence of guilty pleas. According to a 2012 New York City Criminal Justice Agency report, the more days that arrestees are detained, the more likely they are to plead guilty to their charge. Pretrial detention was the strongest single predictor of conviction. Another study, published in August by the National Bureau of Economic Research, found the same link between pretrial detention and convictions. That the bail system is counterproductive is not news. In 2015, Nick Pinto wrote that “the open secret is that … bail is the grease that keeps the gears of an overburdened system turning. By encouraging poor defendants to plead guilty, bail keeps the system afloat.” For Amy Campanelli, head of the Cook County Public Defender’s office, the entire concept of cash bond is the problem. “Cash bond is punitive towards the poor. Bond is not supposed to be punitive,” she says. “It’s supposed to make sure the person comes back to court, and to protect the public.”
THE DAY OF A HIGH-profile bond hearing for Shaquille O’Neal (not the basketball legend), Chiampas was presiding again. Earlier that week, a video had surfaced online of 23-year-old O’Neal being tackled by Chicago Police Department officers. It showed a CPD officer stomping on O’Neal’s head until he was knocked unconscious. O’Neal was then taken to the hospital. The next day, about 100 protesters marched outside the CPD headquarters. O’Neal was released without charges, but re-arrested two days later, charged with aggravated battery to a police officer, aggravated battery by strangulation, and drug possession. It was a combative hearing. O’Neal’s attorney made a comprehensive defense: He argued that O’Neal had been arrested on trumped-up charges just two days after being released, and that he was Tased by the police in addition to being stomped on. The hearing lasted over half an hour. Bond was set at $1 million for a first charge and $150,000 for a second. After the long and exhausting hearing, the felony cases for people with public defenders began, and the rapid pace, the familiar beat of bond court, began to return. The hearings grew progressively shorter. Thirty-seven seconds. Twenty-five seconds. Fifteen seconds. Five seconds. I thought back to Amy Campanelli questioning the purpose of bond. She had asked me whether a $25,000 bond was really just to protect the public, if all one needs to post is $2,500. “Or, is it just penalizing someone who’s poor?”

Poverty’s Punishment: America’s Oppressive Bail Regime
The American Prospect

URL: http://prospect.org/article/poverty%E2% ... ail-regime
Category: Prison
Published: November 18, 2016

Description: Bail systems across the country continue to function as another way the criminal justice system exacerbates poverty and racial inequality.
In 2010, 16-year-old Kalief Browder was arrested for allegedly stealing a backpack. He could not afford to post bail and spent nearly three years on Rikers Island, one of the country’s worst correctional facilities. Mr. Browder spent two of these years in solitary confinement. He repeatedly tried to take his life. In 2013, the prosecutor’s office dropped the charges and released him. Two years later, he committed suicide. The Browder tragedy captured widespread public attention. Mayor Bill de Blasio, Supreme Court Justice Anthony Kennedy, and others weighed in on this miscarriage of justice. In October, rapper Jay Z announced his plans for a film about Browder’s life. Ava DuVernay’s new mass incarceration documentary 13th, discusses Browder’s case and includes surveilliance video that shows Browder being beaten by inmates and correctional officers. One week after the film’s release, Kalief’s mother Venida, an outspoken criminal justice reform advocate, died from a heart attack, or in the words of her lawyer, “a broken heart.” The Browders’ deaths demonstrate how incarceration affects not only the offender but loved ones and the wider community. Trying to obtain money for bail and failing to do so can wreak havoc on people who are already marginalized by the criminal justice system. Bail reform should be a major criminal justice policy goal, but last week’s Republican sweep of Congress, the presidency, and some state houses means that reforms may be in limbo. However, the need to make changes in the current system is acute.The inability to generate money for bail can result in long detentions and make plea bargains tempting irrespective of whether the accused is innocent. Detentions can lead to the loss of income; public benefits; a home; and custody of one’s children (an acute problem for single black mothers)—all for being detained, not convicted. Pretrial detention varies by jurisdiction in the United States, but there are some similarities depending on the seriousness of a crime. An accused person can be released on her recognizance: She pays no money, but promises to appear in court, and sometimes agrees to adhere to certain requirements, such as staying away from certain people or submitting to drug testing. Another option is pretrial supervision, which requires a person to report to an agency that keeps her under a curfew, electronic monitoring, or another form of surveillance during the pretrial period. Yet 60 percent of the people in state jails have not been convicted of anything; some are flight risks or threats, but others simply cannot afford bail. But more likely, she may have to pay bail in cash to ensure that she shows up for her trial. Generally, courts deny bail when a person is a flight risk or poses a threat to the community. Roughly two-thirds of America’s counties use “bail schedules” that link the amount a person must pay to the severity of the crime committed. In Los Angeles, a person accused of making criminal threats must pay a bail amount of $50,000. Bail determinations should consider individual cases, but these schedules sometimes default to a predetermined amount. Being employed or having family nearby may help lower that amount; having a criminal history or outstanding warrants might increase it. If she pays, she gets released and receives her money back when she goes to court; if she misses her court date, she loses the money. A person who does not have the money can look to the multibillion dollar U.S. bail industry. Bail bond agents post bail in exchange for a fee—typically around 10 percent of the bail amount—along with some type of collateral such as a house, jewelry, rugs, or computers. This practice is illegal everywhere else in the world except the Philippines. Yet 50 percent of Americans have trouble getting $400 to pay for any sort of emergency—and that amount is hardly enough to post bail for misdemeanor and felony charges in most jurisdictions. Compared with whites, blacks and Latinos are twice as likely to be detained for nonviolent drug arrests. They also face consistently higher bail amounts and are less likely to be able to post bail. There are strong relationships between being detained in jail before trial and pleading guilty, receiving a longer sentence, and recidivism. Shima Baughman, a University of Utah law professor and a national expert on bail tells The American Prospect, “Every defense attorney you will speak to will tell you that in today’s plea bargain world, a case is won and lost at the bail decision, when an individual gets released or remains in custody.” The inability to pay bail is one cause of jailhouse deaths. The tragic death of Sandra Bland illustrates is a case in point: Her bail was set at $5,000, but neither she nor her family could afford to pay the 10 percent bond ($500), which was one of the factors that kept her in jail, where she later died. Since Bland’s 2015 death, an estimated 800 people have died in jails; 305 of them died within a week of being arrested. Bail regimes vary by state, which makes comprehensive reform difficult. Two popular alternatives—risk assessment tools and electronic monitoring—are gaining traction across the country. The use of risk assessment tools rests on the belief that computer algorithms avoid the biases that sway human decision-makers. In San Francisco, judges use such formulas to determine whether an accused person will commit a crime and return to court if released. The formula, which does not use race or gender, considers factors such as whether the offense is violent, previous convictions, the defendant’s age, and previous failures to appear to court. In Indiana, the state’s highest court recently instructed judges to release people who are not a flight risk or pose no danger to themselves or others. The judges also directed lower courts to use a risk assessment tool that is similar to San Francisco’s formula. But the use of such tools has generated criticism, since they can also produce racial disparities. Former Attorney General Eric Holder has notably acknowledged that such assessments, while “crafted with the best of intentions” may “inadvertently undermine our efforts to ensure individualized and equal justice.” He worried that the use of factors, such as a defendant’s neighborhood or socioeconomic background, “may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.” ProPublica analyzed risk scores for approximately 7,000 people arrested in Broward County, Florida, and found that such assessment tools routinely produced racially discriminatory results. Electronic monitoring is another strategy that the courts turn to. Considering the prevalence of violence, sexual abuse, and disease that exists in jails, monitoring is generally better than confinement. But this strategy also prompts worries about the racial injustices that could get glossed over in the rush to embrace technology. Monitoring devices may save money for states, but as criminal justice reform activist James Kilgore has argued, the costs may simply shift to individuals, a major concern for bail reformers. According to an NPR survey, 49 state-level court systems charge a fee for the monitoring devices; only Hawaii and the District of Columbia do not. The prevalence of monitoriong, along with its increased use on vulnerable groups such as undocumented immigrants, raises concerns about how racial minorities may bear these new costs, while states and private companies reap benefits. Complying with rules while being monitored can be difficult. If a person breaks a rule, like failing to return home at a specified time, she may have to pay for the device and return to jail. Robin Steinberg and David Fiege, founding members of the Bronx Defenders, warn that the “bureaucratic necessitates of compliance can become terribly destabilizing” for poor people who are “struggling to get by, working two jobs with inflexible hours while juggling childcare and other responsibilities.” The financial problems, compliance issues, and reincarceration concerns weaken the “electronic monitoring is better than jail” argument. Moreover, in light of new post-election civil liberties concerns, increased use of electronic monitoring may continue to raise questions. Meanwhile, bail reformers are weighing new strategies. The Marshall Project’s Alysia Santo has documented the rise of bail funds across the country. These charities raise funds to bail out indigent defendants. As long as the defendant adheres to the courts’ instructions while out on bail, the money returns to the charity and the funds can be used for another person. Santo writes, “Most proponents of bail funds see their work as a form of political resistance, using charity to chip away at a system they believe should not depend on money.” In Chicago, African American businessman and former mayoral candidate Willie Wilson runs a pilot program that will invest $15,000 to bail out 15 to 20 arrestees who are charged with nonviolent misdemeanor charges and will give them $200 each when they are released. In Dallas, Ben McFarlin created a crowdfunding app for pretrial detainees called Help Bond Me, which allows individuals to contribute to a person’s bond. Reformers must insure that any new strategies do not exacerbate racial inequality, keep poor people languishing in jail, or force new hardships on to the accused, her family, and the community. With limited prospects for local, state, and federal government action on bail reform on the horizon, technology and market-based solutions may mitigate bail problems in the short term. But until the criminal justice system instititutes comprehensive changes, bail will continue to function as another punishment for poverty.
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