Punished for Being Poor

Defendants who can't make bail, regardless of their crime, are four times more likely to be sentenced to time in prison. So much for innocent until proven guilty.
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Defendants who can't make bail, regardless of their crime, are four times more likely to be sentenced to time in prison. So much for innocent until proven guilty.
Alyssa Work is the project director and sole employee of the Bronx Freedom Fund, a charitable organization that posts bail money for people who have little means to post it on their own. (Photo: Henry Hung)

Alyssa Work is the project director and sole employee of the Bronx Freedom Fund, a charitable organization that posts bail money for people who have little means to post it on their own. (Photo: Henry Hung)

Walking quickly toward the Bronx Criminal Court, Diva pulls out a Newport menthol, shields the cigarette from the wind, and flicks her lighter twice, ’til it catches.

“Take a trip or something, that’s what I want to do,” she says. “Because by the time summertime comes I’ll be finished with all the legal issues. Well, this is the last thing I have to do. Then I’ll be able to live my life normal.” Diva is 43 and has a swaggering strut. She sips deli coffee—one cream, seven sugars—as she crosses the street.

Diva knows the trip from the city shelter where she lives, in downtown Manhattan, to this court well: two trains and a bus, about an hour of travel. In January of 2014, she was charged with menacing and harassment, the result of a heated dispute with the woman she was subletting from. Both called the cops, but Diva was the one who ended up in cuffs. Since then, she’s made the trip to the criminal court 10 times for hearings. Her case was closed this February. She wasn’t charged with a crime, but was mandated to attend three anger-management classes.

Today she is heading to one of those classes, which are held at the court. She points up the street. “Alyssa’s office is right up the block. I love my legal team—Lord knows I do,” she says. “She just told me to keep her updated on what’s going on with me, and how I’m doing. I said, ‘Girl, I’m doing all right! I’m doing fine.’”

"So many judges are in the habit of setting bail and assuming that people have the means to pay."

Alyssa Work is the project director and sole employee of the Bronx Freedom Fund, a charitable organization that posts bail money for people who have little means to post it on their own. Had it not been for Work, Diva would have either been traveling to her court hearings from a cell at Rikers Island, or would have pled guilty to the crime—thereby adding an offense to her record—to avoid spending months in jail.

The purpose of bail is to establish a kind of insurance that the accused, who is presumed innocent, will return for trial—sort of like how a bowling alley requires you to leave one shoe behind to ensure you won’t take off with theirs. Bail is set by a police commander at the station, or, much more commonly, by a judge (as in Diva’s case), a magistrate, or a bail commissioner—who all have considerable discretion.

“People with access to money can [post bail]. People who don’t have access to money can’t,” says Ann Jacobs, director of the Prisoner Reentry Institute at John Jay College of Criminal Justice in Manhattan. In Diva’s case, the Bronx Freedom Fund posted $1,000—not a large amount of bail compared to what’s set for felonies, but large enough that Diva couldn’t afford it. This is the problem that the Fund is working against: a system that keeps people in jail not because they are likely to flee from trial, but because they can’t afford bail. In other words, a system that punishes people for being poor. “So many judges are just in the habit of setting cash bail and assuming that people have the means to pay even a small amount,” Work says.

Without access to bail funds, those accused of minor crimes often plead guilty to get out of jail—and take the strike on their criminal record. “There is nothing as powerful as the desire to go home,” says Scott Hechinger, a public defender with the Brooklyn Defender Services. In 2013, his firm found that those of its clients who were held in jail without access to bail money pled guilty 92 percent of the time, versus just 40 percent for those who awaited trial at home.

The Bronx Freedom Fund is the first licensed charitable bail fund in New York State (a similar operation just opened its doors in Brooklyn). It works with people who are charged with misdemeanors and have bail set at $2,000 or less. In its two years of existence, the average bail the fund has posted is $766, and 97 percent of its 200-plus clients have shown up for every scheduled court appearance.

On any given day, the nation’s 3,000-plus jails detain about 731,000 people—nearly as many people as live in San Francisco. But for their inability to post bail, many of them would instead be at home. In New York City in 2013, for example, over half of jail inmates—54 percent—were held until trial because they couldn’t afford a bail of $2,500 or less. About three-quarters of the people in jail are there for non-violent misdemeanors such as traffic violations or drug or public order offenses—like turnstile jumping or bar fights. A 2013 study from the Laura and John Arnold Foundation found that defendants who were detained for the entire pre-trial period—rather than being let out on bail—were four times more likely to be sentenced to time in prison. Their sentences were significantly longer, too. Shackles and orange jump suits, it seems, affect the perception of a defendant by those deciding his or her fate.

The Bronx County Hall of Justice. (Photo: Henry Hung)

The Bronx County Hall of Justice. (Photo: Henry Hung)

City and county jails cost the government about $22 billion a year, roughly a third of the cost of running correctional institutions nationwide. But sitting in jail is more than expensive. When someone is detained, they are at risk of losing their job, which means they are at risk of not being able to make rent—and not being able to support a family.

Diva’s spat with her landlady wasn’t her first run-in with the law. When she was younger, she hustled drugs—mostly weed, she tells me—and as a result did two terms in prison. After the last she decided to make a change, in large part, she says, for her three children—ages 21, 24, and 27—and her grandchildren.

Amy Gallicchio, one of Diva’s lawyers, thinks that if Diva had had no criminal record, she probably would have been released. A correctional culture in which judges are quick to set bail is rooted in the “tough on crime” rhetoric and practices that blossomed in the 1990s, according to Nancy Fishman, a project director at the Vera Institute of Justice in New York City. “To some extent what we’re seeing is judges, particularly elected judges and sheriffs, [being afraid] of others saying that they let people go out on their own recognizance—even if they are low risk—or that someone is going to label them soft on crime,” she says.

Diva emerged from the anger management class at 11:30 a.m. sharp. When I asked how it went, her eyes lit up. “It was interesting. I learned something. I learned something in 90 minutes,” she said. She stopped at the office of Bronx Solutions, the non-profit group that runs the classes, to sign up for her next, and last, class. We then went across the street for a celebratory burger.

Diva was inspired by the fact that this could be her penultimate visit to the Bronx Criminal Court, the closing of a chapter. “Doors are opening,” she told me between sips of Coke. “I’ve got to take them as they come. I’m going to keep my freedom, though. That’s my destiny: to keep my freedom, and to keep striving and moving forward.”

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