Bail or Bust – Transcript

July 12, 2016
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HOST INTRODUCTION:

This month, we’re presenting a special summer series of the best and the brightest new voices in investigative reporting and audio production. Ariel Ritchin at Columbia University Graduate School of Journalism has taken a hard look at posting bail.

SCRIPT:

I’ve never been arrested, but I know a few things. First they put the handcuffs on, then they read you your rights and then you’re driven away in the back of a patrol car. So when exactly do you get to call a lawyer? How long can they hold you in jail? And what about this thing called bail? That’s what I’m most curious about.

On paper, bail is pretty straightforward. It’s the amount of money you have to give the court to set you free while you wait for your hearing. It’s a sort of collateral or promise that you’ll show up to court.

When you show up for your hearing, you get your bail money back.

But what if you don’t have enough money to “make bail”? What then?

That’s exactly what happened to Miguel Padilla. I first heard his story at the Brooklyn Historical Society. They were hosting a forum on posting bail.

Padilla’s story started in February of last year. He and his wife were throwing a party at their house in the Bronx. There was music, dancing, family. Around midnight, his brother-in-law, who’d had a lot to drink, grabbed his car keys…

PADILLA: He wanted to drive some of the family members home. So I took it upon myself, which I wasn’t drinking that night, to drive. And I drove into Brooklyn and we dropped off some family members.

As Padilla was making his way back to the Bronx, he saw flashing blue lights in his rear view mirror.

PADILLA: I didn’t know I was driving with a busted taillight and we got pulled over.

An officer with the New York City Police Department asked Padilla for his license and registration and then went back to his patrol car. And Padilla? He waited… And waited. What Padilla says he didn’t know was because he’d failed to pay two tickets, his license had been suspended.

When the officer came back, Padilla was arrested.

The next morning, a judge set his bail at $1,000 – high, but not unusual. The amount of the bail is entirely up to the judge.

PADILLA: My poor wife, she tried to raise as much money as she could.

His wife, Stephanie, got $250 together… nowhere near the 1,000 her husband needed.

So, Miguel Padilla – who didn’t have a criminal record, who had three kids to support and had two jobs – one at a big box store and another at a supermarket – was sent to Rikers Island, New York City’s main jail.

PADILLA: The little bit of time I was there. It just took a whole lot away from me. It took my jobs. I had two jobs before this. Paying rent, helping paying bills with my family. And that took everything away from me. Everything. It literally broke my heart.

At Rikers, Padilla says he tried to keep to himself but he says he was hazed, choked and beaten by other inmates.

PADILLA: I went through a lot of physical and mental abuse, like even with the CO officers and all the other inmates. It’s a lot.

But, Padilla says, the worst part was the isolation.

PADILLA: Not to be able to talk to my family. Like, it killed me. I’m sorry people, I’m sorry…

After a week at Rikers, Padilla agreed to a deal with the prosecutor.

PADILLA: Having to plead guilty just so I could come home, because I couldn’t afford $1,000 bail.

When he got out, he needed to find new jobs. But now Padilla had a record… and he says, it was almost impossible.

They moved to Tampa, Florida. And Padilla started trying to find work.

PADILLA: It took me a year all because of the charges I have on my record now, just to find a job. Pleading guilty to the charge, it gave me a criminal record. And you know, in Florida they don’t play – they do a thorough background check.

Today, Miguel Padilla and his wife Stephanie work at Steak n’ Shake fast food restaurant. He’s a short order cook. She’s a cashier.

Two unpaid tickets led to Padilla’s arrest. His arrest led to a judge setting a bail amount Padilla couldn’t afford. That led to jail which cost him his jobs and a criminal record that makes it hard to find work.

This? This is what happens when you can’t make bail.

SAUNDERS: My clients are not at jobs where they have vacation time to burn. They’re at jobs where if you don’t show up that day you’re fired.

At the time this was all happening, Josh Saunders was working as a Public Defender in Brooklyn. Saunders says he’s represented thousands of people like Padilla and bail creates two systems of justice.

SAUNDERS: One for people who can make bail. And one for people who can’t.

And that group of people who can’t? It’s a big group. In New York City alone, some 45,000 people are held in jail each year because they can’t make bail. And even though New York City courts set bail much lower than the rest of the nation, the Criminal Justice Agency reports just one in ten defendants can come up with the money to avoid jail.

And the problem, it isn’t a new one. It was the focus of a 1961 documentary called “Bail or Jail.”

Documentary: Yes the jails are bursting at the seams. A problem of great concern to New York City Commissioner of Correction Anna Cross: Remaining in jail because you can’t get bail is really being punished before you’re even found guilty.

Today in New York City, people arrested who can’t make bail often end up on Rikers Island. The average time they spend at the jail is about three weeks. For many, that time, locked up, away from their families and communities, can mean they lose their jobs, their homes and even custody of their children.

In many cases, not being able to make bail means a life derailed.

If you want to talk to someone who’s on the front lines of bail reform, it’s Mairead Kennelly. She works for the Bronx Freedom Fund. The Fund raises money from private donors and then uses it to post bail for folks who’ve been arrested and can’t raise the money they need to post bail.  

To qualify for the fund’s support, they have to meet three criteria: 1) they’ve been charged with a misdemeanor; 2) it’s their first time being arrested OR they have a history of showing up to court and 3) their bail is pretty low, $2,000 or less.

Bailing people out of jail doesn’t just take money. It takes time. In order for Kennelly to post bail for a client, she has to do it in person. She offers to take me along to see what it takes to post bail for just one client.

We meet at the bus station on 161st and Melrose Avenue in the Bronx. A 27 year-old law student, she’s standing with one sneaker on the curb flipping through a folder of court documents. She’s waiting to get a bus that will take her to a place called The Boat. It’s a floating jail just off the southern tip of the Bronx  on the East River.

Kennelly says it can take her a full 8-hour workday to get to the Boat, post bail, and get back to her office. So she’s come up with some strategies for shaving off time, like choosing which bus to take to the Boat…

KENNELLY: So the first one is always the most crowded. That’s one of the tricks of the trade – always wait for the second.

On cue, two buses show up at once.

RITCHIN: How often do you get a seat on this?

KENNELLY: Every time. Because by the end there’s absolutely no one here.

After a 45 minute ride, we pull up to the last stop. Kennelly and I are the only ones left on the bus. We step off and start walking.

RITCHIN: We are in the middle of nowhere, there’s no sidewalk, rain’s pouring down. I, I wouldn’t even know where to go if I was someone who was trying to pay bail.

I see part of a sign. It’s in Spanish. The part I can read says “Negocio Official” – “Official Business”.

KENNELLY: The sign in English has actually fallen off and they just haven’t replaced it. Everything is rusted.

It doesn’t just look desolate, it smells putrid. A combination of the Hunts Point Fish Market, the East River, and….

KENNELLY: It’s right next to the Department of Sanitation so when the wind is blowing just the right way you get the most delightful smell…

More than an hour after I first met up with Kennelly, we finally reach our destination… The Boat. It’s massive. Docked alongside the East River, this floating jail is five stories high, the length of 2 football fields and nearly a city block wide. It was opened 24 years ago to house inmates when Rikers was too crowded.

KENNELLY: It is a white floating barge. It looks actually quite communisty. It’s all blocks. See people playing up there? That’s the rec center. So, it’s this walled in, caged in thing on the top of the barge.

We walk along barbed wire fence to a gate, then up a short bridge to The Boat. It’s one of just four places where you can post bail for someone arrested in New York City and taken to jail.  

KENNELLY: So we’re walking by the security entrance. Oh god, the door isn’t closed. It’s gonna be cold…

The door is wide open. Wind rushes into the room where Kennelly is going to post bail.  The room is small — like a waiting room at a doctor’s office. There are eight plastic chairs, all in states of brokenness. Two people stand in line and Kennelly heads straight for it: the goal is to pay quickly and get out.

KENNELLY: Hey how are ya?

Kennelly’s made the trip to post bail for a 29-year-old construction worker who’s been charged with trespassing. The judge set his bail at $1000.

KENNELLY: Hey how are ya?

CORRECTIONS OFFICER: How you doing?

KENNELLY: I’m good thanks.

CORRECTIONS OFFICER: Be right back with you.

KENNELLY: Excellent thank you.

After signing in, we sit on plastic chairs and wait. Another hour passes before a corrections officer appears and hands Kennelly a payment form. Turns out when you post bail at the Boat it has to be done in person, either with cash or with a cashier’s check.

After completing the form, Kennelly walks up to the window with the form and a check. The officer shows her a list of names with corresponding bail amounts.

KENNELLY: Yeah that’s the one.

CORRECTIONS OFFICER: One thousand.

KENNELLY: And I only got one check for you this time. It’s an easy day…

CORRECTIONS OFFICER: Ok.

KENNELLY: Thank you, thank you. Perfect. Thanks so much.

Now that Kennelly’s paid the thousand dollars, her client should be out by the end of the day. She says paying his bail today means this guy can keep his job and his family can stay in subsidized housing.

Back on the bus for our return trip to her office, Kennelly sums up one of the key reasons many people think the bail system should be reformed.

KENNELLY: Taxpayers are paying absurd amounts of money to keep non-violent people from their homes and their lives. So it’s $475 to keep someone in jail for just one night. We just paid the bail of someone, of a guy who was in there for $1000. That’s roughly two nights in jail for $1000, to get him out there, to get him working, to get him back to his family. It doesn’t balance. It doesn’t jive.

With that, the bus pulls up and stops where we began our trip more than 3 hours ago.

KENNELLY: We’re getting off here.

Kennelly’s day is only half over. Now she has to go back to her cubicle at the Bronx Defenders Office where she does the other key part of her job – she reminds people she’s already bailed out about their upcoming court dates. She wants to make sure they get there.

First on her list of calls is Antonio.

KENNELLY: Hi, this is Mairead Kennelly calling from the Bronx Freedom Fund. I was just calling to remind you that you court coming up on Monday, the 7th. Ok so we’ll see you there? Bright eyed and bushy tailed, that’s what we like to hear. Thank you so much, Antonio.

If Antonio keeps his court date…

KENNELLY: Then we get the money back so we can do it for the next guy.

The Bronx Freedom Fund makes good bets – 97% of the fund’s clients show up to all of their court dates.

And this type of fund seems to be working…so well that the New York City Council is setting up their own $1.4 million public bail fund – it will allow the city to post bail for people when it’s $2,000 or less.

Another big idea in bail reform is to allow judges more discretion in setting bail. Judges usually set the bail at the person’s first court hearing after their arrest, and they only have a few minutes to make a bunch of complicated decisions.

They consider the seriousness of the crime the person was arrested for. Do they have a job and ties to the community? The idea is to try to figure out if they’ll return to court or not.

And judges can decide what kind of bail to set. There are bails you have to pay up front, and there are delayed bails that you only have to pay if you don’t show up later, for your court date. Judges almost always ask for bail up front.

Insha Rahman works at the Vera Institute. It’s a nonprofit based in New York focused on criminal justice reform. Rahman is doing research to find out what would happen if judges took more into account when setting bail. The stakes are high.

RAHMAN: This is the criminal justice system we’re talking about. There could be really bad consequences if you let out the “wrong” kind of people and something happens.

No judge wants to be the one to let someone out on low bail who goes out and commits a crime.

RAHMAN: I get that fear for judges. The media will never go after the judge who sets too much bail. I’ve yet to see that article in the New York Post or the Daily News about the judge who sets bail every single time at just above a defendant’s reach.  

One of the strongest voices on bail reform is Jonathan Lippman, who until January was Chief Judge of the New York Court of Appeals.

LIPPMAN: It is beyond my imagination why we would let a system like this to continue to exist in New York where you are draining our resources and treating people unfairly, with no humanity, and with no purpose.

Lippman was so frustrated he began lobbying for bail reform three years ago, while he was still on the bench. The way it is now…

LIPPMAN: The judge cannot consider the wellbeing of the public and their safety in making a bail determination.

And one of Lippman’s biggest ideas?

LIPPMAN: I’ve had a statute pending in the legislature since 2013 to correct this unsafe, unfair business. Allow judges, mandate judges to consider public safety. And on the other hand change the presumption for low level, nonviolent offenders. If there’s no reason to keep you in, you’re out. While now the presumption is,  you’re in whether there’s a reason for you to be there or not.

And Lippman has some major supporters.

DE BLASIO: Imagine you’re a judge and you’re not allowed to consider the dangerousness of the person before you, that makes no sense.

That’s New York City Mayor, Bill de Blasio at a press conference this past summer. New York is one of only three states where judges are not allowed to consider how dangerous someone may be when setting bail – Missouri and Mississippi are the other two.

And the cost to keep people in jail – it really adds up. Here are some numbers to keep in mind:

At $475 per night for someone to be held at Rikers Jail, that’s about $170-thousand a year. Multiply that by the nearly 10,000 people in Rikers every day, and it starts to reach the $2 billion a year mark. Did you get that? $2 billion to operate one jail.

So if judges like Lippman could assess a defendant’s risk to society when they are setting bail, the potential savings could be huge. But Lippman says he’s been lobbying the state legislature to get a bill passed for years… and it’s stuck.

LIPPMAN: We get caught up in this tough on crime, soft on crime stuff, instead of doing the hard work and have the hard dialogue to change the criminal justice system. It’s gotta be done now before more people are hurt by this.

If Lippman is in favor of judges having more discretion, New York State Senator Michael Gianaris has an even more radical plan – he wants to get rid of bail entirely. Senator Gianaris says bail has been a bad idea since it was first thought up in the Middle Ages.

GIANARIS: Bail is an anachronism. It’s a vestige of the Medieval Times in England that we just have never gotten rid of.

Senator Gianaris says other proposed reforms are simply cosmetic.

GIANARIS: It’s putting lipstick on a pig. And the bail system is one big pig that we’re dealing with. The U.S. and the Philippines are the only countries in the world that offer such a system. Because everyone else has figured out it doesn’t work.

In Senator Gianarais’ plan, for people accused of the most severe crimes, things will stay as they are now.

GIANARIS: As a practical matter, what judges do now, in cases of first degree murder and some extreme cases, people are remanded.

That means they have to wait in jail until their trial. But for lower level crimes, a defendant would be released and told when to come back to court. And for the in between group? For those who seem like they might not show up for their court date — that’s where Courtney Bryan would come in with a brand new option – supervised release.

BRYAN: It’s treating people with dignity and respect and humanity.  

Courtney Bryan works for the Center for Court Innovation – a nonprofit that’s trying some new programs. New York City has a two and a half year, $17 million contract with the Center and two other groups to pilot a supervised release program.

First step in the program – Bryan meets with the defendant and asks them if there’s anything that could prevent them from showing up at their hearing.

BRYAN: What time do you have to leave? Are there any reasons that you may not have a Metrocard that day? How can we make sure that you’re going to be successful in meeting your court obligations and whatever is going on in your life.

And it’s working. Since the program officially launched in March, the Center has supervised 443 people who were released without posting bail in Brooklyn, Staten Island and the Bronx. More than 95 percent are showing up for their hearings.

BRYAN: If it’s done well and right, it’s hard to imagine what supervised release doesn’t provide that bail does.

Now their goal is to expand. To chip away at the number of people sent to jail simply because they can’t make bail.  

BRYAN: You know you offer this program as an alternative to bail or detention that sends a huge message to that individual, and hopefully to their family and community, that the justice system is attempting to be fairer, have a fair response. That just to me is a way to help build or rebuild trust in government and in the justice system.

But not everyone is optimistic about bail reform.

PAYKERT: Yeahhh free everybody. Let’s Kumbaya and everybody in one big congo line out of Rikers. Everybody walk out Kumbaya yeah!

Eric Paykert is a bail bondsman. He works out of a small storefront office across from the Queens courthouse.

PAYKERT: American Liberty Bail Bonds, this is Eric.

Paykert looks like he means business. He’s a big guy, bald head, barrel chest. He looms over his large desk.

PAYKERT: The purpose of bail is to make sure he goes to court. That’s it. It’s not to make anybody happy. It’s not to make the City Council feel better. Make sure he goes to court.

His business is getting people out of jail for a fee – kind of like an insurance company. The defendant pays Paykert some amount of the bail up front, usually 10 percent. So if someone’s bail bond is $5000, Paykert gets 500. He keeps that. But if his client doesn’t show up for court, Paykert’s on the hook for the full 5000.

That’s how he makes his living. His work involves making a lot of judgment calls – folks who seem like they’re good for it – just the five hundred will work. But if someone seems unreliable to Paykert, he’ll ask for something else – some collateral – just in case the person skips town.

PAYKERT: Anything that has value that I can prove. I’ve taken jewelry. I’ve taken properties. Musical instruments.  

He also asks a lot of questions – not just about his client, but about their friends and family, too. If a client runs, Paykert and his investigators will track them down. And those friends and family members? He has them co-sign on the loan. So if it comes to it, he’ll hit them up for the money he’s owed. His office is open 24/7.

PAYKERT: So it’s a whole slew of things which is why I’m bald.

He says some of the people who are arrested just don’t have reliable phones, or home addresses, or regular jobs. He starts showing me his latest project – it’s an app with a GPS tracker which he asks his clients to download and use. Then they show up on his big monitor as a small dot moving around in New York City.

PAYKERT: This guy checked in online here, you see. This is all that shows up when he checks in. Signature, takes a selfie, signs with his finger so we know it’s him.

He’s looking at his desktop and monitoring the movement of dozens of clients on the screen.

PAYKERT: So you see everybody. Recent check-ins, late check-ins, notifications, anybody that’s been rearrested again. Let’s see if someone came in here, if I have any warnings.

In a separate field on the app, he sees one of his clients was arrested again and bailed himself out – which violates his agreement with Paykert.

PAYKERT: So I’ll call him up and say, “Hey Victor, come here. You didn’t tell me you got rearrested. What do you mean? Well here it is. You got arrested on the 17th, and he was released on December 4th. And so you come clean, or I’m gonna know anyway.”

Paykert says the biggest weakness of the City Council bail fund or any of the proposed reforms is that the city doesn’t have the time or resources to make sure folks show up to court.

PAYKERT: Well, let me guess, you’re going to dump it on the NYPD? Hahaha really? There’s over a million active warrants in the city of New York. A million. Really, you’re going to give another, ok, knock yourself out. Issue more warrants. That’ll, that’ll solve it.

He says the city shouldn’t spend public money to bail people out of jail – there won’t be enough incentive to get it back. For him, it’s his livelihood.

PAYKERT: Everything I do, the taxpayer of the city of New York, they don’t pay a dime. This is me. I pay. Now you tell me who has more of an incentive to bring the defendant back? If I don’t do my job well, I’m out of business.

More than a year after he took a plea deal to get out of Rikers, Miguel Padilla gets emotional when talking about his time in jail.

PADILLA: I wouldn’t wish that on my worst enemy. On anyone. Because what I went through, I wouldn’t want anyone to go through. It’s a lot. People see it from the outside in and they say, “Oh it’s jail. It’s nothing.” Well it’s not nothing. It’s your life you’re playing with.

For Padilla, things snowballed quickly from a couple of unpaid tickets to a criminal record – largely due to the fact he couldn’t come up with bail.

As for bail reform, there’s no clear path forward. There are conflicting interests, old laws and, there’s worry in the way. So for now, people are left to work within the system that exists. And when things break, they have to find a way pick up the pieces.

PADILLA: Before I got arrested my life was basically work, home, take care of the kids. You know I was a provider. It’s hard now. I have to start from scratch. I have to start over.

Padilla still lives in Tampa. He works 16 hour days and rarely gets a day off. But his family? They’re together again.

The Brooklyn Defender’s office made a video of Miguel playing with his kids. His oldest son is laughing, plotting something. He looks down at a cell phone, then up at his dad, and presses play.

Drake song plays – “Started from the bottom now we here”

For Life of the Law, I’m Ariel Ritchin.

HOST OUTRO:

Bail or Bust was reported and produced by Ariel Ritchin, and edited by Kerry Donahue with production support from Jonathan Hirsch and Kirsten Jusewicz-Haidle. Howard Gelman was our engineer.

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I’m Nancy Mullane. Thanks for listening.

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