Column

Most Americans can’t catch the same kind of cash bail breaks as Harvey Weinstein

For many Americans, bail is "the punishment you get whether or not you are guilty of a crime."

NEW YORK, NY - JUNE 05:  Harvey Weinstein (L) exits State Supreme Court with his lawyer Benjamin Brafman after pleading not guilty to three felony counts on June 5, 2018 in New York City. Weinstein has denied all allegations and is currently free after posting $1 million cash bail.  (Photo by Spencer Platt/Getty Images)
NEW YORK, NY - JUNE 05: Harvey Weinstein (L) exits State Supreme Court with his lawyer Benjamin Brafman after pleading not guilty to three felony counts on June 5, 2018 in New York City. Weinstein has denied all allegations and is currently free after posting $1 million cash bail. (Photo by Spencer Platt/Getty Images)

On the same day last month that disgraced movie mogul Harvey Weinstein stood before a judge to plead “not guilty” to three counts of rape and sexual assault, attorney Matthew Daloisio happened to be among the throng of spectators in that packed Manhattan courtroom.

He wasn’t there as just another looky-loo. Daloisio is a regular around the courthouse as an attorney for the Brooklyn Community Bail Fund, non-profit organization that provides money for criminal defendants who lack the means to pay the bail they need to avoid being remanded to a jail cell as they wait, for an indefinite period of time, for trial.

“It was one of the regular days that I’m in court,” Daloisio said in a phone interview, recalling the odd scene.

But it wasn’t just an ordinary day in court. Not in the least.

“The court had been mobbed for hours with people outside and the press inside,” he said. “Things were shut down to allow Harvey Weinstein to walk into court, appear before the judge, plead his innocence, pay his bail, and walk out. It was a very different process than the one most folks who are arrested go through.”

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That’s an understatement. To understand how very unique Weinstein’s arraignment was from the typical and frequent experiences of criminal defendants, consider the very next case in that same courtroom. As Daloisio described it, a black man had been arrested about 7 p.m. the night before for failing to pay a fine on a marijuana-smoking charge. He was held in a jail cell overnight and only came into the courtroom after the Weinstein circus had fled the scene.

“Most people who come into court can’t get escorted in and brought before a judge so quickly,” Daloisio said. “The arrest and processing should be a lot faster for everyone because we assume the folks appearing in court are presumed innocent.”

But that’s not how it works. Unlike the many defendants who hail from a working class background or who are members of racial minority groups –who make up the overwhelming majority of those appearing before judges across the nation — rich white men like Weinstein and President Donald Trump’s former campaign manager Paul Manafort typically buy their way out of jail by posting a cash bond.

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In Weinstein’s case, he paid $1 million, strapped on an ankle monitor, and surrendered his passport, but was allowed to continue to roam about in New York and Connecticut, where he has homes.

Manafort’s freedom was more costly; he posted a $10 million bond, that allowed him to travel with a similar ankle monitoring device to his homes in northern Virginia, Florida’s Palm Beach, and the Hamptons.

(On Friday, a federal judge revoked Manafort’s bail in the wake of reports that he had used multiple text messaging apps and called a potential witness in his case in an apparent effort to influence their testimony. As a result, Manafort, who was not put in handcuffs, was led away from the courtroom and will await his trial from a jail cell.)

Practically speaking, Weinstein and Manafort flashed a “get out of jail” card, allowing them privileges unknown to people without access to wealthy, powerful, or influential friends and top-flight legal counsel. For an unaccountable number of less well-to-do criminal defendants, marked by their inability to post a cash bond, the presumption of innocence doesn’t exist and they’re forced to serve time for suspected crimes they’ve either never been convicted of committing — or didn’t commit in the first place.

And, like nearly everything that touches criminal justice in the United States, the cash bond system profoundly discriminates against poor and minority Americans. Numerous academic studies have examined the inherent racism embedded in allowing some people to avoid jail and others to languish in a cell based on their race or ability to pay.

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In a 2003 article published in the journal Criminology, Stephen Demuth examined the effect of race and ethnicity on pretrial release among white, black, and Hispanic defendant groups using data compiled, biennially by the State Court Processing Statistics (SCPS) program of the Bureau of Justice Statistics. The study looked at samples of formally-charged felony defendants in state courts of the nation’s 75 most populous counties in 1990, 1992, 1994, and 1996. They found:

[A] general pattern of Hispanic disadvantage across all stages of the pretrial release process. Hispanic defendants were more likely to be denied bail, more likely to have to pay bail to gain release, required to pay higher amounts of bail, and more likely to be held on bail. This was consistent with a growing body of research that show Hispanic disadvantage throughout the criminal case process. The study suggests that Hispanics are more likely to encounter criminal stereotypes and are less likely to have the resources to avoid the imposition of negative labels. These findings indicate the continued importance of racial and ethnic stratification in United States society.

In a their paper, Racial Bias in Bail Decisions,” released in April, David Arnold and Will Dobbie at Princeton University and Crystal S. Yang at Harvard found that the cash bail system was steeped in widespread racial discrimination. Specifically, they observed from their studies in Miami and Philadelphia that “bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We find suggestive evidence that this racial bias is driven by bail judges relying on inaccurate stereotypes that exaggerate the relative danger of releasing black defendants.”

We should all be embarrassed that we uphold this system that oppresses primarily people of color  when they don’t have $500, $1,000 or $2,000 to get out of jail and are forced to sit in a cell for a week or month.

Back in New York, Daloisio said more than 3,000 people have used funds provided by the Brooklyn Community Bail Fund, amounting to “a little over $3 million” since the fund was started in 2015. The passage of a 2012 state law paved the way for the fund’s work, allowing non-profit groups to pay bail of $2,000 or less for misdemeanor defendants who don’t have the money to do so on their own.

“The D.A.’s [district attorney’s] office would be looking into people’s financial resources, into people’s ability to pay in making decisions about whether to lock someone up or not, but that’s what essentially happens,” Daloisio said. “We should all be embarrassed that we uphold this system that oppresses primarily people of color  when they don’t have $500, $1,000 or $2,000 to get out of jail and are forced to sit in a cell for a week or month.”

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Alarmed by the gross inequity of the cash bail system, various groups and individuals are hard at work to reform this racist system so that it resembles something more equitable and humane, but despite their best efforts, support remains elusive for most people caught up in the system.  An emerging bail reform movement has risen to shoulder the burden, winning limited but important victories in recent years.

For example, Color of Change, a California-based racial justice group, called for the end of cash bail practices in a new illustrated video released earlier this year.  Illustrated by artist and writer Molly Crabapple and narrated by singer John Legend, it describes how prosecutors and law enforcement officers trap poor people of color with outrageously high bail for crimes, leaving the bail bonds industry to pocket astronomical profits from their misery.

“Bail is the punishment you get whether or not you are guilty of a crime,” Legend says in the video.

The cruel absurdity of cash bonding is revealed by a pair of contrasting true-life stories, involving individuals whose experiences before the bar of justice veered wildly away from what Weinstein and Manafort experienced.

In December 2006, in a case that drew worldwide attention, Theo Shawthen a 17-year-old student at Jena High School in Louisiana, was one of six black kids accused of attempted murder in an attack on a white student. Though he insisted he was innocent, Shaw lacked the money to post bail and spent seven months in jail.

He was eventually released after pleading no contest to misdemeanor simple battery, at which point the attempted murder charge was dropped. Had he not accepted the lesser charge, he faced the prospects of a protracted jury trial that might have imprisoned him for the bulk of his life.

Shaw’s unfortunate story has a bittersweet ending, as he graduated this month from the School of Law at the University of Washington. What’s more, his classmates chose Shaw, now 29, to speak for them at the graduation exercises.

As Jarvis DeBerry, a columnist with The Times-Picayune in New Orleans noted recently, Shaw’s story is a cautionary tale of how cavalierly “our criminal justice system chew[s] up and destroy[s] human talent.”

An even more tragic and dramatic illustration of this can be seen in the story of Kalief Browder. Arrested at the age of 16 in the Bronx for allegedly stealing a backpack, Browder was held for three years at the Robert N. Davoren Center on Riker’s Island — a notoriously violent facility — as he waited through an interminable series of trial proceedings, all because he didn’t have the necessary $3,000 to post bail.

By the time his impoverished family raised the money, officials refused to release him on bail. Meanwhile, the prosecutors in charge of his case kept filing for extensions, citing a lack of readiness, that piled months onto Browder’s internment.

After much delay, prosecutors were forced to concede that they lacked any evidence that Browder had committed a crime, beyond the say-so of the person who originally identified Browder as his assailant, who left the United States during the time Browder spent rotting on remand on Riker’s Island. Browder was released from jail, but only after having endured an horrific experience that included brutal beatings from inmates and guards, as reported by those who spoke to him for the 2017 Netflix series “Time: The Kalief Browder Story.”

“Before I went to jail, I didn’t know about a lot of stuff, and, now that I’m aware, I’m paranoid,” Browder told The New Yorker’s Jennifer Gonnerman, “I feel like I was robbed of my happiness.”

Three years ago this month, and two years after he left Rikers Island, those words would prove to be prophetic. Browder committed suicide, an act his family blames on his anguish over his long incarceration without a trial.

What more does it take for Americans to demand an end to this unfair, class-based and racially discriminatory system of cash bond system. It needs to change now.

To be clear, the solution to such horrific injustice isn’t to make the bond release system worse for wealthy, white men. Rather, we must reform the criminal justice system by according poor, minority and historically disadvantaged Americans comparable privileges and compassion that judges show to well-to-do defendants.

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