Earlier this month, I set aside an afternoon to bail a woman I had never met out of jail. After picking up a folder with a cashier’s check for $25,000 and some basic information about her, I took the train down to a bail window in Downtown Brooklyn. As I approached, the city employee behind the glass clocked me as one of the 200 volunteers who had signed up to bail women and youth out of jail this month as part of Robert F. Kennedy Human Rights’ $5 million Mass Bailout action. The group, led by Kerry Kennedy, has so far raised more than $3 million and counting. Protocol required that I state my relationship to the woman I was trying to get out of Rikers; I went with “neighbor.”
The woman I was there to bail out was arrested for alleged arson last year, and, like most of the nearly 9,000 New Yorkers locked up in city jails, she was still waiting for her day in court (Kennedy asked volunteers not to reveal personal information about the people being bailed out in order to protect their privacy). About half the people in pretrial detention are there because they can’t afford to pay bail—the money a judge sometimes requests as collateral in exchange for releasing someone ahead of their court date, to be returned if and when they show up. A judge can also require someone to stay in jail without setting bail, or release them without it.
There’s evidence that people who are subjected to pretrial detention are more likely to plead guilty, get convicted, serve longer sentences and face consequences like losing their jobs or homes than those who don’t.
“The crux of the issue is that in New York City, we criminalize poverty,” Kennedy told the New York Times. “There are no wealthy people on Rikers Island because if you are wealthy, you go free because you make bail.”
While I waited the two and a half hours it took for documents to be faxed between Brooklyn and Rikers Island, I stepped outside to get some air with one of the other volunteers. A reporter for the New York Post, which has been breathlessly sounding the alarm about the Mass Bailout since before it began on October 1st, was waiting to ask us if we knew how the nonprofit was selecting people to be released. Did we know that some of them were accused of violent crimes?
When news of the bailout first made headlines last month, Police Commissioner James O’Neill and Mayor Bill de Blasio urged Kennedy to stick to helping people charged with low-level offenses—the same population the city’s patchwork bail reforms have focused on, while a comprehensive overhaul of the cash bail system stalls in Albany. District attorneys also chimed in—some with support for the action, but also with varying degrees of concern about who would be let out and what precautions should be taken. Although news reports framed it as a completely novel situation, Brooklyn DA Eric Gonzalez’s office told me that the precautionary measures he recommended—notifying victims and witnesses and ensuring that any relevant orders of protection are still in place—are standard procedure when someone is released on bail.
Still, the attention from law enforcement sparked a heated debate. Some—including a former probation commissioner—have praised the mass bailout, while the Post has published a series of articles about the “sketchy” people who have been released so far, and an editorial branding the whole thing a reckless “celebrity stunt” to raise Kennedy’s profile (the rapper Common participated).
Some crucial context for the Mass Bailout—one piece of a growing movement to end cash bail that’s having success in other parts of the country—has gotten lost. So has the fact that the organizers aren’t just throwing caution to the wind. They’re modeling alternative services that could be used to help people make their court dates and avoid getting tangled up again in the criminal justice system, and the city is paying attention to how this goes.
The Bailout is expected to last at least through the end of the month; here’s what you should know.
Not a permanent solution
"We never saw this as a solution, but as an intervention to free people now and shed light on what's going on and build demand for long-term structural reforms," Wade McMullen, Jr., managing attorney at Kennedy, said in a phone interview.
The design of the action itself speaks to some of the structural problems bail reformers are hoping to address.
The Mass Bailout’s goal was to release all bail-eligible 16- and 17-year-olds and women housed on Rikers Island—up to 400 people—within a couple of weeks, thereby significantly reducing the population of two distinct facilities at the jail complex and possibly helping to accelerate its planned closure (the teens have since been transferred to a juvenile detention center, but Kennedy is still working to bail them out). The nonprofit recruited 200 volunteers to execute the action because in New York charitable organizations (including the Bronx Freedom Fund and Brooklyn Bail Fund) are limited to bailing out people with misdemeanors whose bail is set at $2,000 or less, while private citizens are only allowed to bail out two people per month.
None of these restrictions apply to for-profit and frequently predatory bail bondsmen. A defendant whose family can’t cover the full bail amount may opt to pay a bail bondsman a nonrefundable percentage of their bail instead. In exchange the bail bondsman will issue a bond to the court promising to pay the full amount if the person doesn’t show up for their hearing. As a result, taxpayers are spending $100 million a year to incarcerate people who can’t afford bail, while the growing commercial bail bond industry brings in between $16 million and $27 million annually, according to a January report from City Comptroller Scott Stringer.
The ambitious Kennedy project has had to adapt to the realities of the system, which can be mired in delays (luckily, the fax machine at Rikers was working the day I went to post bail). Volunteers are bailing out fewer people per day than originally anticipated and the action is being extended over a longer period of time. That was necessary in order to ensure people aren’t released in the middle of the night when they might not be able to access certain social services or when family members might not be available to meet them, McMullen explained.
“Our commitment to everyone involved is that we will ensure people are bailed out with dignity and set up for success,” he said.
Volunteers have bailed out “dozens” of people so far, according to McMullen. “If we get to the end of October and 100 fewer people are in jail, that's absolutely a success in our minds,” McMullen said, adding that the goal was always to free as many people as possible. “These are people who the system has just flat out given up on."
Out of jail and into social services
Some law enforcement officials have argued that people bailed out by a charity won’t have the same support or incentive to return to court as they would if a friend or family member put up the money.
An impressive 96% of the people who have had their bail paid by the nonprofit Bronx Freedom Fund over the last decade returned to court for all of their appearances. However, some people being released through the Mass Bailout have had to post higher bail than charities would typically be allowed to pay, meaning they may have been deemed greater flight risks. That said, Kennedy isn’t just releasing people and hoping for the best.
When considering someone for bail as part of the action, the nonprofit said it first looks at what services they will need upon release, which could include things like housing, drug treatment or psychiatric care, and works to put those in place before posting bail.
Once people get out, they’re greeted at Kennedy’s makeshift welcome center with a MetroCard and a cell phone on which they can communicate with their lawyer about their case and receive texts about upcoming court dates.
The welcome center is also staffed by members of the city-funded Crisis Management System, a network of nonprofits that intervene to disrupt violence through conflict mediation and other services. The network contributed to a 15% decline in shootings in the city’s most violent precincts over the past three years, according to the Mayor’s Office to Prevent Gun Violence.
Of course, none of this guarantees someone won’t try to flee or commit a crime while out on bail, but that’s also true of the thousands of people released on bail each year without any of these interventions.
The Brooklyn House of Detention on Atlantic Avenue (Bebeto Matthews/AP/Shutterstock)
It’s not just NYC
Washington, D.C. largely eliminated cash bail in 1992 in favor of more risk-based assessments and a big investment in social services, and the courts there now let more than 90% of defendants walk free ahead of their trials. Last year 88% of the people released made every court appearance and 86% were not re-arrested, D.C. Judge Truman Morrison told NPR last month. Of those who were rearrested, less than 2% were for violent crimes.
Considering the pretrial goals of protecting community safety and ensuring a court appearance without destroying people’s lives, “money bail is a joke,” Morrison said.
Many states are now considering following in D.C.’s footsteps. New Jersey and Alaska recently implemented sweeping bail reform and California passed legislation this year to abolish cash bail (albeit amid criticism of the opaque risk assessment tools it will be replaced with).
In New York, Governor Andrew Cuomo has proposed a bail overhaul that would eliminate its use for misdemeanors and nonviolent felonies and would allow judges to opt for alternatives to monetary bail in cases that do involve violent felony charges.
New York City, meanwhile, launched a supervised release program in 2016 to allow some defendants to check in with nonprofits or participate in programs in lieu of paying bail. About $14 million of the $17 million currently available for the program came from Manhattan DA Cyrus Vance’s office. He said he believes it should be extended to more people but didn’t say whether that should include people accused of violent crimes, who are currently ineligible.
As for the Mass Bailout, organizers hope it will help build a base of people who will push for reform and can be mobilized for future bail-related actions. Before signing up for a shift to bail anyone out, all of the volunteers had to attend a teach-in style training that covered the role of bail in the criminal justice system and the history of buying people’s freedom in the U.S., from slavery to community bail funds set up for LGBTQ people and others who have been targeted by the police.
Today the Bail Project, a spawn of the Bronx Freedom Fund, is working to set up bail funds in cities across the country that will free people while pushing for reform. Since these funds get most of the bail they post back once people show up to court, the money is continuously reinvested.
No matter how much controversy the Bailout is stirring up right now, Kennedy is not the first to use this tactic—and while people’s freedom can still be bought, it won’t be the last.