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Learn about Decarcerate PA’s work to reduce mass incarceration

Read Alice Goffman’s On the Run: Fugitive Life in an American City

Learn more about how the bail system disproportionately impacts people of color in The New Jim Crow: Mass Incarceration in the Age of Colorblindness

Read Jennifer Gonnerman’s New Yorker article about Kalief Browder

Ideas We Should Steal: Eliminating Bail for Nonviolent Crimes

Ideas We Should Steal: Eliminating Bail for Nonviolent Crimes

A New York plan promises to save money, reduce prison overcrowding and cut down on prison violence. Could it work in Philly?

Rikers Island, like many New York state prisons, is crowded with people arrested for relatively minor infractions. In 2013, the NYPD arrested over 350,000 people, most for nonviolent crimes, including nearly 8,000 for criminal mischief alone. Advocates have long pushed for reforms to the New York prison system, arguing that Rikers Island and state jails are overcrowded; that it’s too expensive to keep so many people locked up; and that poor people and people of color are jailed in disproportionately large numbers.

Philadelphia’s city jail in the Northeast is bursting, with many two-person cells now holding three people. About 75 percent of the 8,000 inmates are awaiting trial; 15 percent will spend four months or more behind bars even before their cases are adjudicated.

But that will soon change. On July 8, New York announced that judges throughout the city will now be permitted to release a limited number of “low risk” defendants without imposing bail. The details of the plan are not yet final, but its substance is that instead of paying a bond, these accused—mostly of misdemeanors and nonviolent crimes—will be supervised, connected to services and reminded of their upcoming court date by text message.

“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,” Mayor Bill DiBlasio, said in a statement. “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 reforms are not without precedent—Kentucky, Oregon, Wisconsin, and Washington D.C. have all abolished commercial bail. In D.C., 88 percent of defendants show up for their court dates anyway. “The changes in New York are coming about because there’s something of a trend happening nationwide,” Karin Martin, professor at John Jay College of Criminal Justice, told NPR. “We’re realizing that we can’t afford, both financially and kind of morally, the horrible impacts of mass incarceration.” Proponents of the changes in New York City argue that they will decrease prison over-crowding and save the state money—it costs $460 per day per inmate at Rikers Island—as well as decreasing violence: Rikers Island has a long history of inmates who are awaiting trial getting hurt or killed.

But the idea has its critics. Those opposed to bail elimination argue that defendants will fail to show up in court without the motivation of recouping their bail money. And some say that bail is used as a technique to persuade defendants to plead guilty, which saves the cost of prosecuting cases. (The courts are just as swamped as the jails.) There are also those who agree the system is flawed, but think the reforms won’t fix it. “The city’s proposed cure may be nearly as bad as the disease,” writes Robin Steinberg, Executive Director of the Bronx Defenders, arguing that the new system, which emphasizes supervision through a series of tasks and check-ins defendants must complete, still punishes and controls primarily poor people of color before they are found guilty of any offense.

Could these reforms work in Philadelphia? Pennsylvania has a higher rate of adult incarceration per capita than New York—391 per 100,000 to New York’s 271. And Philadelphia incarcerates more people per capita than any of the other 10 largest American cities. Philadelphia’s city jail in the Northeast is bursting, with many two-person cells now holding three people. About 75 percent of the 8,000 inmates are awaiting trial; 15 percent will spend four months or more behind bars even before their cases are adjudicated. Like Browder, hundreds are there because they can’t afford bail, often for nonviolent infractions like drunk driving, fraud, prostitution or shoplifting—according to a Pew report, half of all inmates are there for parole violations. While locked up, they are at risk for mental and physical harm, not to mention the cost to the city: About $240 million a year.

The city received a MacArthur Foundation grant to reduce incarceration. “I have not seen the District Attorney’s office be very active on bail,” says civil rights lawyer and Penn professor David Rudovsky. “Jim Kenney has at least signed on to the notion that bail reform would be worthwhile.”

“The number of people incarcerated in the United States has grown seven times over the past 40 years, and this growth has been concentrated among Black men with little education,” writes sociologist Alice Goffman in On the Run: Fugitive Life in an American City, her years-long study of a community of poor black men in a West Philly neighborhood. (She calls it “6th Street.”) “In the 6th Street neighborhood, a person was occasionally ‘on the run’ because he was a suspect in a shooting or robbery, but most people around 6th Street had warrants out for far more minor infractions,” Goffman wrote.

At one point in 2007, Goffman and a resident went around the neighborhood conducting a poll of the 217 households on 6th Street: “We found 308 men between the ages of 18 and 30 in residence. Of these men, 144 reported that they had a warrant issued for their arrest because of either delinquencies with court fines and fees, or for failure to appear for a court date within the past three years.” Goffman says these infractions kept men she knew from attending the birth of their children or seeking medical services—she alleges in her book that hospitals commonly run names to see if any warrants come up, though hospitals deny this—as well as doing simple things like visiting family or applying for jobs, for fear police would trace their common whereabouts.

Philadelphia has started to address the problem. The 2011 report by the Pew Charitable Trusts’ Philadelphia Research Initiative found that addressing the prison population awaiting trial would be the best way to relieve the city’s crowded prisons. This past May, the city was named as one of 20 recipients—out of 200 applications—of a $150,000 grant from the MacArthur Foundation as part of an initiative to reduce incarceration. It has used the money to establish a coordinating committee of partners, including the District Attorney’s Office, the Police Department, and the Public Defenders office, and to develop an official plan that will be submitted to the MacArthur Foundation later this year. As many as 10 jurisdictions will receive a second round of funding in 2016—$500,000 to $2 million—to support implementation of their plans for two years.

“We have had conversations with mayoral nominee [Jim] Kenney and his staff, and we’re working on the MacArthur grant as we speak,” says Cameron Kline, a spokesperson for District Attorney Seth Williams. Though Kline said he couldn’t comment on whether the plans mirrored New York City’s reforms, he did say, “Since he took office, the District Attorney has been on the cutting edge of bail policy.”

David Rudovsky, a civil rights lawyer and professor in the University of Pennsylvania School of Law, disagrees. “I have not seen the District Attorney’s Office be very active on bail,” says Rudovsky. “I have not seen initiatives by the DA or the courts to change these serious problems.”

But Rudovsky says he is hopeful that Kenney, who has shown an interest in criminal justice issues, will implement some changes.“He realizes that the cost of incarceration in Philadelphia is huge and goes up every year,” Rudovsky says, noting that Kenney was the Councilman who pushed marijuana decriminalization, over the objections of the Police Commissioner and Mayor Nutter. “Kenney has at least signed on to the notion that bail reforms would be worthwhile.”

Kenney’s office confirms he is considering a reform plan to implement if elected. But the plan is in a very early form with most details—like which offenses are considered slight enough not to merit bail, how risk would be assessed for different offenders—yet undecided. “It is these detailed questions,” Rudovsky says, “that will make or break its success.”


Header photo: Family Interrupted, 2012 © Eric Okdeh/City of Philadelphia Mural Arts Program. Photo by Michael Reali

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