BETA

Paying for freedom

Wednesday, Oct. 12. Another morning at the office in Courtroom B of the Elm Street Courthouse: to the left of the white marble-walled room, the court lawyers and their support staff mingle and laugh. Their side of the room is dominated by stacks of paperwork, manila folders, and a few computers. In the center, the judge’s bench sits vacant between the flags of the United States and Connecticut. To the right, rows of chairs sit empty, waiting. Above them, an ornate plaster of Paris clock with Roman numerals ticks away the minutes. Finally, at around 11:40 a.m., accompanied by guards, the prisoners start to trickle in. Some are defiant, others sullen, others nervous. The youngest is 18; the oldest is over 60. Most of them are puffy-eyed and exhausted. All of them are or will be in the care of the public defender.

They are all men—11 of them, mostly Black and Hispanic—and, technically, they are innocent. You wouldn’t know it, looking at them. These innocent people are all bound hand and foot, their shoulders tugged behind them by handcuffs at their backs. The more broad-shouldered among them have one set of handcuffs attached to each hand and linked together, forming a crude, metallic infinity in the small of their backs. Invariably, these linked-together handcuffs are taut, digging into their wrists.

If it were a weekend, these men would be in lockup in the basement of the New Haven Police Department, awaiting their arraignment. But it is a business day, and each has been accused of a crime, so they are here in Courtroom B, where the bail commissioner, the assistant state’s attorney, and the public defender will haggle over how much each will have to pay to get out of jail.

This sequence plays out every weekday in 20 local courthouses that feed into 22 pretrial detention facilities across the State of Connecticut; together, these institutions modify and ultimately sustain a pretrial population of around 3,000 innocent people. Soon, there will be another person in Courtroom B: a representative from the non-profit Connecticut Bail Fund, which plans to begin posting bond for New Haven detainees held on low bail. They will try to snatch at least a few defendants out of the clanking apparatus of pretrial detention.

*

Here’s what happens when you get arrested in Connecticut: first, you’re taken to pre-arraignment lockup. In New Haven, that means facilities in the basement of the New Haven Police Department. There, the desk sergeant will set your overnight bond. The next morning—or on Monday, if you’re arrested over the weekend—you go to court for an arraignment hearing, where generally you will receive a lower bond. If you want to get out of jail before your trial, you, someone you know, or a bond agent will have to cough up the funds. Otherwise, you’re in jail. Maybe for a long time, your Constitutional right to a speedy trial notwithstanding. This is where the fund comes in.

“Really, we’re fighting this two-tiered system of justice that is set up by money being a part of our justice system,” said Patrick Sullivan JE ’18, one of the Connecticut Bail Fund’s co-founders.

At Wednesday morning’s arraignment, five of the men get released on a PTA: a “promise to appear” at their next court date. The remaining six will be held on bond, with the lowest bond at $5,000 and the highest at $100,000. For its supporters, bond is just a risk-management mechanism. Joseph Lamotta, the assistant state’s attorney for this arraignment, said that “the purpose of bond is not necessarily to punish those who post it. It’s twofold: to assure their appearance in court, and to protect the public.” He recalls one of the defendants present at the hearing, who had been arrested with a loaded and chambered .32 caliber pistol. Surely I don’t want him out and about.

Probably not, when it’s put that way, but does that mean he should sit in jail? Would his being able to afford a five-digit bond make his freedom any safer?

Connecticut licenses two sorts of bondsmen to assist defendants in making bail: professional bondsmen and surety bond agents. The former pay for the entire bond up front, while the latter pay only 10 percent and have the rest insured by a third party. Their business cards are wedged into nooks and crannies around the New Haven Police Department, and they are generally found wherever people are going to be incarcerated. If you are poor and awaiting trial, they might be your only option.

“It’s presumed innocent until proven guilty, but not really,” says Beatrice Codianni, a formerly incarcerated person and now the managing editor of Reentry Central, a publication focusing on issues of prisoner reentry into society after incarceration. Codianni is a member of the community advisory board of the Connecticut Bail Fund. “You get arrested and you get a bond put on you and if you’re poor, you stay in jail.”

*

The Connecticut Bail Fund began in the fall of 2015 with Brett Davidson ’16, who spent a summer working with a civil rights lawyer in Los Angeles. He spoke to many people who were in jail because they couldn’t afford bail and was shocked by the scope of the problem.

“I was very surprised, I think, because I had some faith in the fairness of the justice system. That there was some element of due process… that you’re innocent until proven guilty.”

The experience got him thinking about the possibility of a non-profit bail fund in New Haven, and the thoughts got closer to action when he met another of the eventual co-founders, Simone Seiver, PC ’17, at an October meeting of the Yale Undergraduate Prison Project. Davidson self-deprecatingly notes that she has a “can-do attitude” that he lacks. They soon met with Scott Greenberg, a researcher at the Yale School of Medicine, who had independently come up with the idea for a bail fund in the course of his work with the Transitions Clinic at the Whalley Avenue Correctional Facility. While there, Greenberg saw inmates on bond as low as a $100 and saw the need for something like the bail fund. Sullivan, whom Davidson knew through improv and Seiver through the Prison Project, joined soon after. With a Yale Entrepreneurial Institute fellowship of $15,000 for the organization and a $28,000 Gordon Grand Fellowship to support Davidson as he worked on the fund full-time after graduation, they were off the ground.

The group spent the summer working at the offices of the Entrepreneurial Institute. There was some semantic incongruity between the two organizations—when I spoke to Kassie Tucker, the YEI’s director, and Brita Belli, its communications officer, about the Bail Fund, they preferred the term “social impact venture” to “non-profit”—but ultimately it was a fruitful partnership. The YEI provided working space, mentorship, and access to counsel. Over the course of the summer, they worked through a sometimes arcane set of regulations to arrive at their final legal and institutional form: they are a federally registered 501(c)(3) non-profit, and, in Connecticut, a non-stock corporation. Seiver and Davidson will serve as the Fund’s licensed professional bond agents. They will be professional bondsmen, as opposed to surety bond agents. Licensing might not be necessary, as the law only requires registration by individuals who post bail more than five times a year.

“So we thought: if that’s the case, is any one of us going to post bail more than five times in a year? And the answer might be ‘no’ if I post bail five times, Brett posts bail five times, Scott posts bail five times, Pat posts bail five times, you go post bail for us five times—if we diffused posting bail across an army of volunteers, no one person should post bail more than five times,” Seiver explained.

But incorporating meant that the bail bonds would be funded by only one pool of money, the corporation’s. That, together with a desire not to “skirt” the law, led Seiver and Davidson to decide to undergo the licensing process. As of publication, their final interviews were set for the coming week. If everything goes well at those, Seiver said, they should be able to start posting bail soon—maybe within the next month.

*

The Connecticut Bail Fund will be up against an intimidating system. Since July 1, 2016, the government of Connecticut has released a (for the most part) daily snapshot of demographic and offense-related data for every inmate in pretrial detention in a Connecticut correctional facility. A preliminary analysis of this data reveals a disheartening picture: by most measures, pretrial detention in Connecticut perpetuates the racial disparities that are rampant elsewhere in the American criminal justice system. Worse, even without parsing the data for race, the average length of stay in pretrial detention is high across the board.

Defendants await trial in 22 facilities across the state. From July 1 to October 13, 2016,* 7,580 people were in this system. On any given day, there were approximately 3,346 inmates in pretrial detention in Connecticut. The average bond was $124,012, though this measure is probably significantly skewed by a small amount of extremely high bonds in the $1 – 3 million dollar range for very serious offenses. Eight hundred twenty inmates, or approximately 10 percent of the population, were in pretrial detention on bonds lower than $5,000. Men were 86.73 percent of the pretrial detainee population and women 13.27 percent (the demographic data does not count nonbinary identities).

These numbers are disturbingly racialized. Of all pretrial detainees, 36.13 percent were Black and 25.66 percent were Hispanic. This is in a state where 11.6 percent of the population is Black and 15.4 percent is Hispanic, which means that these two groups represented, in pretrial detention, 300 and 150 percent of their demographic proportions, respectively. White people comprise 68.2 percent of the state’s population but only 37 percent of its pretrial detainee population. American Indians form 0.3 percent of the state population and 0.3 percent of the pretrial detainee population; Asians are 4.6 percent of the state and 0.61 percent of pretrial detainees.

The trend persists with bond amounts: on average, Black detainees had their bonds set at $163,902, and Hispanic detainees at $134,686. This is compared to an average of $124,012, with the average bond amounts for other races ranging from $79,001 (White) to $86,692 (Asian). Similar racial dynamics are present in the length of stay statistics.** The average stay was 171 days across the board, which is alarming in itself. In general, only 25 percent of people spent fewer than 17 days in pretrial detention, and only 5 percent spent fewer than two days; exactly half of the pretrial population spent more than 52 days awaiting trial. On average, Black people spent 220 days in pretrial detention, and half of them spent over 63 days awaiting trial.

Think about what can happen in 63 days, or 17, or even two: you can lose a job, lose custody of a child, get behind in school, fail to pay your rent, get evicted. Codianni, who spent 17 years in prison on racketeering charges, knows the feeling well. People awaiting trial, she said, will often “take a plea bargain even if they’re innocent just to get the hell out.” According to fellow board-member Barbara Fair, who has long worked on criminal justice issues, 90 percent of criminal cases in New Haven are settled with plea bargains, which is roughly in line with the national average of 94 percent in state courts.

Lamotta, as an assistant state’s attorney, understands the incentive to plea, but thinks that it is less common than some say.

“When we interview individuals for this job,” he tells me, “we send them through various hypotheticals. And one of them is if you have this first-time offender who’s accused of a felony, and he didn’t do it, but he wants to plead guilty just so he can go home to Kansas or wherever. And the most common answer—well, the best answer—is that you drop the charges.”

When faced with first-time offenders, Lamotta tries to be “somewhat solicitous” of their rights, because they are new to the system. He thinks it’s different with repeat offenders, that they know what they’re doing. Being in the system, “you get a feeling of the ebb and flow. You know who’s savvy and who’s not.”

I don’t doubt that Lamotta is telling the truth, or that he’s trying to do a good job. I don’t doubt that the preponderance of people in the system are trying their best to get outcomes that are as just as possible. Or even that some of the men I saw were indeed dangerous. But I can’t stop thinking about what the system, working as it now does, produces: 11 men, just before noon, walking handcuffed into a courtroom and standing before the panel that would rattle off their past transgressions and judge how likely they were to transgress again. It gives us poor people, disproportionately Black and Hispanic, spending weeks and months in jail, all while presumed innocent.

*

This summer, Governor Malloy tried and failed to pass a bail reform bill that would have largely eliminated bail for low-level offenses and would have encouraged judges to allow defendants to pay 10 percent of the bond, much like they would with a surety bond agent, but to a state-administered fund instead of a private company. The bill failed. As the Connecticut Mirror reported, Speaker of the House Sharkey refused to bring it to a vote, saying that though there was “unanimous support for the concept” of the bill, it was outside the caucus’s comfort zone; the Minority Leader, Themis Klarides, wanted a risk assessment-based approach instead of a blanket abolition of bond for low-level crimes. All, however, agreed that reform was necessary. It is, among other things, expensive to keep people in jail. That might explain why the Connecticut Bail Fund has had what Seiver called an “overwhelmingly positive” response from government officials. One analyst, the Mirror reported, projected that the bill would have reduced pretrial detention by 1,000 inmates, a tremendous number relative to the total.

Right now, the Connecticut Bail Fund has about $60,000 available for posting bail. Bail money is returned after the defendant shows up to court, so, aside from any losses, the money will be perpetually useful, but is certainly not enough to tackle the totality of unpaid bonds all across Connecticut, which are worth, as of October 13, about $650 million.They are planning to start small, posting low bail (the exact cut-off is to be determined) for defendants in the Elm Street Courthouse and for detainees held on low bail at the Whalley Avenue Correctional Center, which houses pretrial detainee men from New Haven, and the York Correctional Center, which houses women. It was Whalley, after all, which spurred the creation of the fund: Greenberg was working there when he began to think about the bail fund after seeing detainees spending prolonged periods in jail on bonds as low as $100. At the time of publication, 150 detainees in Connecticut were being held on bond at or below $3,000. Approximately 60 of them, said Sullivan, were detained at Whalley.

According to Seiver, the short-term focus of the fund will be on the Whalley Avenue jail. In the medium term, they will work on fundraising in order to bail more people out, assist other bail funds that are starting out, and eventually bring clients who have been bailed out and left the system back as volunteers for the fund. Seiver and every other person affiliated with the bail fund I spoke to were unanimous in their long-term goal: to no longer exist. Everyone involved agrees that bail, in some way or another, has to be reformed. Fair’s extensive experience working on criminal justice reform has led her to believe that to be meaningfully successful, any reform will have to be “deep system work” that fundamentally restructures the institutions of punishment from the ground up.

“You’ve got to start decriminalizing people… It would mean a change in the way people see other people in the first place,” she said.

We know how the criminal justice system sees people now: risks to be mitigated, potential crimes that are better off being thwarted behind bars, even if that means they’ll spend months before trial. Here is one more thing I saw in court: a woman shaking feverishly next to her child as her partner stood before the judge. Would he get released? The attorneys, the bail commissioner, and the judge deliberated. Eventually, he was, with an admonition that one more argument, any drug use, any step out of line, and he was back in jail. She kept shaking.

Charlotte Lawrence, ES ’18, contributed data analysis.

 

* The data has several gaps, which might distort this average.

** The length of stay is skewed high by several very lengthy stays, but is also artificially low because (a) we adopted the state’s recommendation that stays in excess of a year be treated as incorrect data points and not included in the data, even though several data points appeared to correctly display stays in excess of a year, (b) the gaps in the data mean that several stays drop out of the count prematurely, which leads to undercounting, and (c) since the data is daily, many of the stays that were ongoing as of Oct. 13 will continue into the future, but are counted as if they ended on the last day used in the data.

 

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