Rikers, The Harms of Cash Bail, and the NYC Mass Bail Out

October 31, 2018 JIE Updates

by Fonda Shen

The Columbia Center for Contemporary Critical Thought (CCCCT), the Columbia Justice Lab, the Columbia Center for Justice, and the Justice-in-Education Initiative (JIE) hosted a panel to discuss the October 2018 Mass Bail Out on Wednesday, October 17th.

The Mass Bail Out is an initiative to bail out women and children from Rikers Island, spearheaded by the RFK Center for Human Rights and grassroots organizations across the city. The panel was moderated by CCCCT Director Professor Bernard Harcourt and included Columbia Justice Lab Co-Directors Professor Bruce Western and Professor Vincent Schiraldi, Amanda Jack of the RFK Center for Human Rights, and JIE Community Fellow Jay Holder.

The panel began with an explanation of cash bail, the monetary deposit paid for the release of an arrested person. Cash bail is collected before a defendant is ever convicted, and the Department of Finance holds this money as an incentive for the defendant to return to court. At that time, the money is refunded to the person who originally paid bail.

Cash bail removes the question of guilt and innocence from detention and replaces it with a question of economic standing: those wealthy enough to pay bail can go free, explained CCCCT Executive Coordinator Ghislaine Pagès. The Mass Bail Out action is simultaneously a political statement and an effort to help incarcerated individuals right now.

Pre-trial detention can have harmful effects on defendants and their families. Sociology Professor Bruce Western emphasized the high risk of assault and victimization in jails and the substantial negative impact that one person’s pre-trial detention can have on their family, employment, and health. Speaking about his contribution to an amicus brief for a case questioning the constitutionality of cash bail in the state of California, he explained how the cash bail system circumvents statutes that only allow pre-trial detention for felony crimes.

When asked why the Mass Bail Out is focusing on women and children, Amanda Jack, who was a Brooklyn public defender prior to spearheading the Mass Bail Out with the RFK Center for Human Rights, described the unique issues that children, women, and gender non-conforming individuals faced at institutions like Rikers. Although new legislation is raising the age at which children can be charged as adults, according to Jack, there is still a discrepancy between the statutory requirements and what is actually being done at Rikers. Women were chosen because, in a jail where the majority of inmates are men, women are frequently left out of plans and conversations regarding the future plan to close Rikers. The project prioritized gender non-conforming individuals, because of the frequency at which they are put into solitary confinement due to the lack of appropriate accommodations.

For Jay Holder, who works with the Center for Justice as a JIE Community Fellow, American prisons are a constant reminder of how little things have actually changed since the Civil War. Holder highlighted one interpretation of the Exception Clause in the 13th Amendment that allows for the continued existence of involuntary servitude within prisons. Holder, who has spent time in Rikers himself, reflected upon the difficulties his own mother faced while bailing out her children. To Holder, she is a living reminder of how pre-trial detention can permanently and negatively affect the family members who are tasked with bailing out their loved ones.

Holder, however, also spoke of positive efforts in communities to combat gun violence. The Cure Violence effort puts “firefighters,” people tasked with preventing gun violence before it happens, in violence-prone neighborhoods and has had a substantial impact on the number of gunfights in the city. The weekend prior to the event was the first weekend in twenty-five years without a shooting in New York City.

Several of the panelists spoke about the irrationality and injustice behind the idea of cash bail. Professor Vincent Schiraldi, especially, questioned why cash bail exists when it seems to have only tangential connections with the problems it is supposed to address. The vast majority of people return for their court dates regardless of what kind of crime they allegedly committed, he said, and cash bail can’t be an effective way to keep dangerous individuals out of society if anyone can simply buy their way out.

In a discussion focused on the problems with the penal system, the most terrifying suggestion came from Jack: “It’s not that the system is broken—it’s doing exactly what it’s designed to do.” There was a palpable reaction in the room as the audience considered that mass incarceration is an intentional effort to shut away the poorest, most discriminated against, and most vulnerable members of our society. In New York City, Jack said, bail bondsmen are not allowed to operate without turning a profit. This system is so functional that it has created a population of approximately 1.5 million American inmates, enough people to populate one of the top ten largest cities in the country, according to Holder.

The Mass Bail Out will continue until the end of October. The effort will not go on permanently, Jack said. Continuing to bail out individuals would minimize the political impact of the movement by turning the organization into a bail bondsman and implying that the existing system is acceptable. There is also a risk that judges will react to a continued bail out by increasing bail. The hope is that one day, wealth will no longer be conflated with innocence, and profit will not ride on the shoulders of suffering.

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Fonda Shen is currently a second-year student at Columbia College majoring in History and Political Science. She is also a staff writer at the Columbia Daily Spectator and a contributor to the Columbia Undergraduate Law Review.

Featured image: Barring Freedom, July 16, 2012. Photograph by Meesh / Flickr