Brought out in handcuffs, a defendant stands with his public defender before a judge. The prosecutor requests that bail be set at $500. The defendant has a warrant on his record—likely the result of a failure to appear in court—and so the non-profit that provides bail recommendations advises against releasing him. If the judge agrees with the prosecution’s $500 request, the defendant, a day laborer, won’t be able to afford it. He will be sent to Riker’s Island prison to await his trial date, a few days or even weeks away. He will lose his job for missing work. He will not be able to pick up his children from school or watch them in the evening. This man has not been found guilty of any crime, nor has he had a trial in front of his peers. Yet his life will be turned upside down by even the briefest stint in prison.
His alleged crime? Putting his feet up in a subway car.
While much of Reboot’s work takes place overseas, we see too many instances of injustice and abuse in our hometown, and we focus our pro-bono work here in New York City. In the past, we’ve worked with the domestic violence organization, Safe Horizons, to design communications materials to better reach trafficking victims. Right now, we are deep in a project with a new organization, the Brooklyn Community Bail Fund, aimed at designing an immediate solution for one of the most systemic economic inequalities in our courts.
For this project, we’ve spent several days viewing arraignments in King’s County Courthouse, and have seen many heart-rending stories of people unable to post bail. Studies from Human Rights Watch and others confirm that bail is a common source of inequity and discrimination in the criminal justice system. Most people who can’t afford bail end up pleading guilty, forgoing their right to a trial just to get out of prison and go home. The system needs to change, and many public defenders believe that the cash bail system should be abolished completely.
But on the way to reform, small nonprofit organizations like the Brooklyn Community Bail Fund are stepping in to give more defendants the benefit of release. This fund will post bail for people charged with low-level crimes, allowing them to continue working and caring for their families while awaiting trial. After watching the wheels of Brooklyn’s misdemeanor court turn, we know first-hand how much this program is needed.
Bail often punishes low income people for crimes they have not been found guilty of committing. A short time in jail can have massive repercussions for anyone, but especially for those living and working without a safety net, at the margins of society. Homeless people often lose shelter housing, for themselves and their families if they are unable to show up for an evening. People in low-paying and temporary jobs will often be fired if they fail to appear. Those receiving treatment for drug addiction may face serious health risks if a program is interrupted.
Bail is intended to ensure that people charged with crimes return to have their day in court. But in practice the system does just the opposite, often forcing people to plead guilty. The public defender organization Brooklyn Defender Services recently collected data from a sample of defendants in Brooklyn; in that group, an incredible 92 percent of defendants held in prison pled guilty, as opposed to 40 percent of those released on bail. The desire simply to return home is a powerful incentive to forgo one’s right to a trial.
Even if a defendant perseveres, simply having been unable to afford bail negatively affects the outcome of the case when it does go to trial. In the same group of defendants, only 38 percent of those held on bail received a favorable resolution, compared to 88 percent of defendants who were free leading up to the trial. The bail system clearly works against the basic tenet of innocent until proven guilty.
Inability to post bail even when the amount is very low affects thousands of New Yorkers every year. In 2008, the defendant was unable to afford bail in 87 percent of cases in which bail was $1,000 or less —this translates to over 15,000 New Yorkers held in prison for an average of 15 days before trial. The consequences extend to taxpayers as well: According to Human Rights Watch, the average daily cost for each incarcerated inmate is $400. Nationwide, the estimated cost of imprisoning people held on bail reaches $9 billion each year.
Fortunately, a growing number of bail funds are providing a temporary solution. Although the number of bail funds is still relatively few, they exist in several states, including New York, where a 2012 law sanctioned nonprofit bail funds for the first time. The success of these pioneering programs offers strong proof that we need more like them. One inspiration for the Brooklyn Community Bail Fund is the Bronx Freedom Fund, which boasts a 98 percent return rate for bail fund recipients. That’s higher than the rate of return for those released without bail.
Reboot has been studying the example of the Bronx Freedom Fund as we work to support the best possible design for Brooklyn’s fund. We are working closely with public defenders involved in the establishment of the fund, as well as the Board of Directors that will oversee it once established. Our mandate is to bring expertise in design research to help build a system that will reach the defendants who will benefit most—and one that administrators can manage sustainably.
Our project has required in-depth field research with the justice system. Observing arraignments in court improves our understanding of the people involved in a court case: What pressures are faced by public defenders, who are the front-line in serving clients? Interviews with public defenders reveal important opportunities: What can they teach us about making sure defendants show up in court—since they’ve been doing it for years? And interviews with people who have faced bail themselves help us understand how a bail fund can better serve people like them.
Bail is a serious impediment to justice in this country—one of many in a criminal justice system rife with discrimination and flaws. As New Yorkers, we’re hungry for change, from the NYPD to the courts. As designers, we know that reform requires empathy and listening to succeed. As we work with the Brooklyn Community Bail Fund, we’ll continue sharing insights here in support of design for a better justice system.
