Criminalizing Poverty

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Kalief Browder spent three years in jail for a crime he didn’t commit.

By now, his story is known to many: arrested in 2010 and charged with robbery, grand larceny and assault, the then-16-year-old Browder spent the next three years of his life imprisoned at Rikers Island. During his incarceration, Browder developed severe depression; his family attributes Browder’s depression — and multiple suicide attempts, both at Rikers and after his release — to the time Browder spent in solitary confinement. Following his release in 2013, Browder’s mental health continued to deteriorate. On June 6, 2015, one week after his 22nd birthday, Browder hanged himself from an air conditioning unit outside his bedroom window.

Browder’s case is often described as a “miscarriage of justice.” This term, however, incorrectly implies that the state made a good-faith, if misguided, attempt to serve justice. Browder was imprisoned for three years without a trial or a conviction, solely because his family couldn’t afford the cost of bail money to bring him home. Had his family been able to afford bail, everything that came after — the fights in prison, the 800+ days spent in solitary confinement, the depression, the suicide attempts — would not have happened.

Kalief Browder did not receive justice. To all intents and purposes, Kalief Browder died because he was poor. The conditions that precipitated Browder’s death are not the exception; they are the norm. It is time to abolish the cash bail system.

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When someone is arrested and charged with a crime, there are two ways they can secure their release from jail. The first is to request a release on one’s own recognizance (O.R.); judges weigh these requests on a case-by-case basis, factoring in — among other things — the severity of the charges. There is no guarantee that an individual’s O.R. request will be granted.

The second option is to pay bail, a deposit made to the court that is returned as long as the individual appears for their scheduled court date. Bail amounts vary depending on the offense and the individual’s criminal record, but for many lower-income detainees, even a bail amount of $500 can be prohibitively expensive. In a September 2017 study, researchers at Princeton University found that “the typical felony defendant is assigned a bail amount of more than $55,000…[But] earned less than $7,000 in the year prior to arrest, likely explaining why less than 50 percent of defendants are able to post bail even when it is set at $5,000 or less.”

In that case, individuals can enlist the services of a bail bond agent who, for a fraction of the total bail amount (usually 10%), will guarantee the total amount to the court. But depending on how high the bail amount is set, that amount might still be beyond the individual’s means. On top of that, unlike bail paid directly to the court, bond agents do not return the amount paid to enlist their services.

This is why, according to the Prison Policy Initiative, of the approximately 630,000 people currently housed in local jails, a staggering 70% (443,000) have not been convicted of a crime, and two-thirds of that group (296,000) have been arrested for nonviolent offenses. They are simply unable to afford the cost of bail. In effect, the cash bail system is criminalizing poverty.

And that’s only the beginning.

Moreover, according to the study, individuals who cannot afford bail are nearly 25% more likely to plead guilty to the charges, regardless of innocence or guilt. And in New York, for example, that number is even higher; according to a November 2017 article in the New York Times, 90% of people who can’t afford bail end up pleading guilty.

According to the Brooklyn Bail Fund, the most common misdemeanor offenses in New York City are marijuana possession, turnstile jumping, driving with a suspended license, low-level drug possession, petty larceny and trespassing. However, in a backlogged legal system, the average misdemeanor case lasts six months from the time an individual is arrested to the completion of their trial. This leaves individuals in the impossible position of having to decide whether to maintain their innocence and spend up to six months (or more) in jail while their case makes its way through the court system, or plead guilty in order to go home.

There are some remedies for indigent incarcerants beyond bail bond agents. In many major cities, there exist nonprofit organizations that will pay the cost of bail for low-income individuals who can’t afford it and can’t secure a release from jail on their own recognizance. These organizations are largely funded by donations from private citizens.

Last November, online literary magazine The New Inquiry introduced Bail Bloc, an app — the first of its kind — that it calls “a cryptocurrency scheme against bail.” Bail Bloc diverts the unused processing power on its users’ computers toward mining Monero, a form of cryptocurrency. (By donating their processing power, users — known as “miners” — allow Monero to operate virtually without the need for massive server farms.) Each month, the amount of Monero mined by users’ computers is exchanged for U.S. dollars and donated to the Bronx Freedom Fund.

These services have helped thousands upon thousands of individuals, but they are a treatment, not a cure.

Those who do not have any personal experience with the prison system are not particularly inclined to demand comprehensive prison reform. As a result, the number of people willing to donate their hard-earned money to these nonprofit organizations is insufficient.

And while Bail Bloc solves the “bystander effect” problem, it also presents another. As rates rise, more and more computing power is required to mine cryptocurrency; furthermore, the dramatic fluctuation in cryptocurrency rates also casts the long-term viability of Bail Bloc in some doubt. Poor incarcerants should not be forced to leave their freedom up to the generosity of strangers or the whims of the cryptocurrency market.

Those who oppose discontinuing the cash bail system claim that its abolishment will lead to an uptick in crime and failures to appear in court, but the statistics thus far do not support that hypothesis. In late 2016, New Jersey became the first state to eliminate the cash bail system, placing the onus instead on judges to assess each defendant’s risk and determine whether to grant O.R. release or to keep them in jail until their trial. Both law enforcement officials and prison reform activists have applauded the change; in fact, most of the complaints have come from the bail bond industry (an extortionary field in its own right).

In fact, the early results have been so positive that New York Governor Andrew Cuomo has proposed the adoption of a similar system, and last week, Philadelphia’s City Council passed a resolution calling on the District Attorney’s office, Pennsylvania state legislature, and Pennsylvania Supreme Court to overhaul and end the cash bail system in the city.

Even if nonprofit bail organizations raise the necessary funds, be it through cryptocurrency or traditional donations, the underlying issues inherent in the cash bail system still remain. These options will undoubtedly help thousands of low-income incarcerants, but they merely treat the symptoms of the disease — they do not cure it.

The cash bail system is just one of the many obstacles littering the path out of poverty in America. And as long as the practice persists of confining people to modern-day debtor’s prisons, the most vulnerable among us cannot possibly receive the justice they deserve.


Ryan is a Master's student in the Creative Publishing & Critical Journalism program at The New School and an editorial intern for News Cult, where he covers politics, culture, tech, dating advice, and editorial writing. Ryan previously worked as a contributing writer for TrigTent, a political and cultural opinion site, and as a contributing editor for Foodable WebTV NetworkYou can find more of Ryan's writing on MuckRack or on his blog. Follow him on Twitter@ryanrosswriter