New York City's district attorneys are on edge. Beginning this week and extending through the month of October, as many as 500 women and teenagers currently imprisoned on Rikers Island and juvenile jail facilities will walk free when volunteers pay their bail. This Mass Bail Out Action, which is sponsored by RFK Human Rights and a network of grassroots groups, is hoping to post bail for every woman, sixteen- and seventeen- year-old currently sitting in jail in New York City because she or he cannot afford bail. The effort is similar to the powerful work of community bail funds and the recent National Bail Out projects, in which grassroots groups throughout the country have engaged in mass bailouts of black people incarcerated pretrial because of their poverty. The Mass Bail Out volunteers hope to bring urgency both to the effort to close Rikers Island (which the City has said it plans to close within ten years) and the push to eliminate the use of money bail nationwide. They are engaging in a profound act of resistance even as officials such as the DAs insist that freeing these incarcerated people will threaten the “public safety.” New York’s officials have strongly resisted the Mass Bail Out and are “scrambling to prepare,” according to the New York Times. If released from jail, their story goes, these women and teenagers will engage in violence, re-offend, or as Bronx District Attorney Darcel Clark warned, “end up being a victim of violence themselves,” especially if they are mentally ill or homeless.
‘Public safety’ has come to embody a very harmful and narrow definition of which ‘public’ matters.
Yet therein lies the hypocrisy of the DAs’ fears, as well as our criminal justice system more broadly. The purpose of bail, after all, is to allow for people accused of crimes but not yet proven guilty to be released from jail. In fact, under New York law it is illegal to set bail for any reason other than to ensure that the accused person will return to court. Although judges ultimately determine the amount of bail, it is the DAs who make the initial request and ask judges to set that bail. And yet what the reaction to the Mass Bailout shows, in stark contrast, is that the DAs use bail money for very different purposes than it was designed for. They request these bails ostensibly to ensure the accused show up to court; yet now that they are actually being posted, the DAs are crying foul and warning that freeing the accused will endanger “public safety.” They are therefore admitting what so many in affected communities already know to be true: that money bail routinely—and illegally—is set too high for poor defendants to afford, solely for the improper purpose of keeping them in jail before trial. For felonies, median bail in New York City amounts to $5,000; for misdemeanors, it is $1,000. At Rikers Island, on any given day, over 7,000 people are detained before conviction because they cannot afford their bail. And 87 percent of them are black or Latino.
The officials’ alarm over the Mass Bail Out also exposes how “public safety” has come to embody a very harmful and narrow definition of which “public” matters. In the name of safety, we have justified incarcerating people based on their poverty, as if the detention of hundreds of thousands of people who have not been convicted of any crime actually works to prevent future crime on our streets. Statistical studies have continually shown that these concerns are exaggerated; the vast majority of people who are arrested and then make bail do not commit violent crimes while their cases are pending. In fact, according to a study by New York City's Criminal Justice Agency, only 3 percent of “at risk” defendants who make bail are even arrested (let alone convicted) for a violent crime while their initial cases are pending. Similarly, a recent study by the Vera Institute of Justice tracked more than fifty people who were released from court in New York City without having to pay their entire bail—only two were rearrested on a new violent felony charge over the following year.
Individual freedom is a part of public safety, too.
Much like the famed “Willie Horton effect,” when we focus on sporadic acts of violent crime we overreact with excessive punishment and obscure the everyday mass violence that pre-trial incarceration does to millions of ordinary people—and their families. In the case of bail, this punitiveness is especially pernicious because it pretends to be a neutral financial calculation: if only this person had enough money, they could be free and would not be a threat to the public.
The Mass Bail Out forces us to confront the ways in which pretrial incarceration is itself a public safety threat. Placing women and minors (or anyone, for that matter) in jail exposes them to violence and misery. It exposes their families and neighborhoods to loss of income, stability, and the everyday companionship of a parent, spouse, sister, brother, neighbor, or coworker. When volunteers post bail for women and minors detained at Rikers Island, they will demonstrate that they, as members of the local community, actually feel safer knowing that a woman or teen has left the violence of jail and returned home to go to school, earn money at their job, raise their children, and participate in their own defense, while waiting for trial or other resolution of their case. Individual freedom is a part of public safety, too.
The Mass Bail Out forces us to confront the ways in which pretrial incarceration is itself a public safety threat.
There is, of course, a chance that one of the 500 women and minors freed from jail during the Mass Bail Out will go on to engage in an act of violence. If the aforementioned studies are any indication, approximately 3 percent of those freed (15 people) may even end up accused of a violent crime. (This, however, is a generous overestimation considering that women are especially unlikely to be rearrested and that the Mass Bail Out will be providing connections to supportive services that will also make rearrest less likely.) If that happens, the media coverage will undoubtedly be presented as scary—as a danger to the community that could have been avoided. But if that familiar script plays out, it will be critical to remember how the vast majority of women and teenagers were free to go back to their families, schools, and workplaces. It will be critical to remember that the Mass Bail Out produced more safety than it endangered by allowing hundreds of women and teenagers the freedom to engage with their communities. In the words of the organizers, the Mass Bail Out ought to be understood as “redefining how we invest in communities, and divesting from harmful (and expensive) practices that do not make us safer.” In the end, the Mass Bail Out asks us all to reconsider what it means to keep the public safe.
Jocelyn Simonson is Associate Professor at Brooklyn Law School, where she writes and teaches about criminal law, criminal procedure, evidence, and social change. She studies bottom-up interventions in the criminal legal system, such as bail funds, copwatching, courtwatching, and participatory defense, asking how these real-life interventions should inform our conceptions of the design of criminal justice institutions, the discourse of constitutional rights, and the meaning of democratic justice. Her article “Police Reform Through a Power Lens” is forthcoming in the Yale Law Journal. She tweets @j_simonson.