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Common Bails Out a Stranger

What it’s like to take part in New York City’s Mass Bailout.


Common Bails Out a Stranger

What it’s like to take part in New York City’s Mass Bailout.

This commentary also appears in The Daily Appeal, our newsletter. Subscribe here.

It was nearly 1 p.m. last Wednesday, and Common, the 46-year-old rapper, actor, and criminal justice reform advocate, stood on Atlantic Avenue in downtown Brooklyn, smiling nervously. He wore subtly tapered black pants, gray laceless sneakers, and a fashionable auburn T-shirt. Kerry Kennedy, the president of the nonprofit group Robert F. Kennedy Human Rights, had just handed him a less fashionable T-shirt—navy blue, with the words “MASS BAIL OUT” written across the front. Common tried to express enthusiasm for the shirt, but he clearly preferred his chosen color scheme. “Look at all these stylish people,” he said, gesturing to the group of activists accompanying him, some of whom seemed more stylish than others. “And I’m gonna have the blue with black, and the gray?” But Kennedy didn’t let the matter drop. It was, after all, a photo op. There was a film crew trailing him.

Common was on his way to the Brooklyn Detention Complex to post bail for a woman he didn’t know. He was one of hundreds of volunteers participating in an action that RFK Human Rights calls Mass Bail Out. On any given day, over 7,000 people are jailed at Rikers Island who have not been convicted of anything; they have been charged with a crime but are unable to afford bail. And 87 percent of them are Black or Latinx. The goal of the Mass Bail Out was to free about 350 of the people in this predicament—every woman, 16-year-old, and 17-year-old, regardless of the charges they face—to await trial from home. The point is to show that New York City does not need Rikers and does not need cash bail—the city would be just as safe, and these women and young people can be spared the trauma of jail, not to mention the educational, employment, and familial consequences of being taken away from their lives.

The rapper, actor, and criminal justice reform advocate Common was one of the hundreds of volunteers participating last week in an action that the nonprofit group Robert F. Kennedy Human Rights called Mass Bail Out.
Sarah Lustbader

“The only reason this woman is in a cage is that she can’t afford bail,” Wade McMullen, the managing attorney of RFK Human Rights, told Common. “And as soon as she’s in that cage, she’s at great risk for sexual assault, discrimination, and abuse. She’ll be separated from her family and taken from her job.” People who were locked up, he went on, were more likely to be coerced into pleading guilty, even for crimes they hadn’t committed. “The system is set up to help prosecutors,” he said.

Common listened with his arms folded, at one point stroking his close-cropped beard. Eventually, he gave in, agreeing to change T-shirts. “I’m gonna give up fashion for freedom!” he declared. He pulled off his shirt on Atlantic Avenue, quickly replacing it with the RFK shirt. The new color scheme looked fine.

Judges often set high bail in order to detain a defendant. This is a perversion of the purpose of bail, which is to allow people charged with a crime to remain free while they fight their cases, with an incentive to return. Advocates argue that bail should provide a meaningful incentive to return, not a jail sentence. Many urge judges to tailor bail to a person’s ability to pay: $20 could be just as meaningful to one person as $20,000 is to another.

Instead of waiting for judges to change their behavior, groups like RFK Human Rights have set out to change the system themselves. Organizers have gathered money for community bail funds across the country to help people who cannot afford their freedom. RFK Human Rights’s bail action has put the city’s district attorneys “on edge,” writes Professor Jocelyn Simonson. Some have warned that freeing these women and teenagers will jeopardize public safety. “The RFK Jr. [sic] Human Rights ‘mass bailout’ project in New York may sound compassionate, but it’s actually a dangerous and irresponsible intrusion into our criminal-justice system,” Queens District Attorney Richard Brown wrote in the New York Post.

According to Simonson, this reaction “exposes how ‘public safety’ has come to embody a very harmful and narrow definition of which ‘public’ matters.” Evidence indicates that the risk posed by people awaiting trial is exceptionally low, while the risk of violence to people detained at Rikers Island, especially women and young people, is quite high.  “The Mass Bail Out,” Simonson argues, “asks us all to reconsider what it means to keep the public safe.”

On the street near the jail, Kerry Kennedy addressed the public-safety question. “If we were truly afraid, then Harvey Weinstein wouldn’t be walking free.” She also noted that, as attorney general, her father, Robert Kennedy, addressed cash bail in the federal system. “Here we are now, having failed to address it at the local level,” she said.

In 2017, Kennedy’s group helped bail out Pedro Hernandez, a Bronx teenager who spent a year at Rikers for a 2015 shooting that he did not commit. Yesterday, the Bronx DA finally dropped the last remaining charges against him. Hernandez, like Kalief Browder, has been called a “poster child” for bail reform.

Common, Kennedy, and the film crew began walking toward the jail. In his new outfit, Common attracted even more attention than he did before. As they walked by, two white women sporting librarian haircuts stopped and stared at his shirt. “That’s a rapper,” one explained to the other. “He’s going to bail someone out.” Three teenagers in gym shorts tried to get Common’s attention—“I rap too! Check out my mixtape!” one shouted—but Common didn’t seem to hear them. I told them that Common was about to bail someone out of jail, and their eyes grew wide. “Oh, word?” said one. “Tell him to free my uncle!”

McMullen prepared Common to go inside to the room where bail gets paid. “It’s not the most efficient system,” he said. Once Common gave over the information—the woman’s name, her ID number, his name—the person at the window would fax it to Rikers; then we would wait for a fax back, which could take an hour or two. McMullen assured him that “we’ve arranged to go to a nice window,” where the officer would expedite the process as much as possible. Common was handed a file containing information about the woman he would be bailing out, and he nodded solemnly as he turned the pages.

Sign here, under “advocate,” McMullen said, helping him fill out the surety form. “You’re the advocate. That’s your relationship.”

“Now I’m an artist, activist, and advocate!” Common said.

They walked into the small bail room, and the lofty rhetoric gave way to bureaucracy. Common approached the bail window, one of two. “Hey, how you doing today?” he said with a smile. “I’m here to bail someone out.” The officer behind the window seemed indifferent—not hostile, not friendly, barely making eye contact. “ID?” she said.  Common turned to McMullen: “This is the nice window?” Common handed over the paperwork, then started to wait. He asked if the officer could give him a courtesy call when the fax from Rikers came in, like a restaurant texting a patron when a table becomes available. No luck. He would have to wait in the bail room like everyone else.

At the other window, a woman talked to the officer in loud and frustrated tones. Her bailout attempt did not seem to be going smoothly. Behind us, a man struggled to use a JPay machine.

After about 20 minutes, an officer walked in and told the film crew to stop recording. “Look, Common, we are all very happy for you,” she said, in a tone that seemed to belie her words. “We get it. But you guys just can’t record in here.” The cameras were turned off. Another officer asked for Common’s autograph; a third officer asked Common to pose for a picture.

The bail captain returned with some good news: She’d called the women’s wing of Rikers and they were expediting the paperwork. “That’s where I used to work,” she explained. Even with this VIP treatment, Common would end up waiting nearly an hour. While we waited, he told me how, growing up on the South Side of Chicago, “it became normal to have friends and family members incarcerated. I would visit my uncle in jail. I accepted it as normal.” Then he met Michelle Alexander, the scholar and author of best-selling book The New Jim Crow. (Being Common means having experiences that are not at all common.) Alexander helped him connect the dots between slavery and the prison system, and he realized that mass incarceration was neither “normal” nor inevitable. “I almost felt like I’d been duped,” he said.

When the paperwork was ready, Common stepped up to the window. The officer showed him a photo of the woman, confirming that she was the person he wanted released, and he nodded. “Sign here and press hard,” the officer instructed, handing him some paper with carbon copies underneath. With three swoops of his pen, Common was done. He and the officer wished each other a good day, and he walked back onto the street.

As he headed off to his next engagement, he seemed invigorated by the experience. He even came around on the T-shirt, saying he wouldn’t change back. “I’m gonna rock this today and let people know what I’m about.”

Will Alabama Sheriffs Finally Stop Diverting Jail Food Funds To Their Own Wallets?

The governor is making sheriffs sign an oath promising they won't misuse funds meant to feed jail prisoners. But some sheriffs are already pushing back.

Etowah County Sheriff Todd Entrekin infamously pocketed $750,000 in jail food funds and subsequently bought a $740,000 beach house.
Etowah County Sheriff's Office

Will Alabama Sheriffs Finally Stop Diverting Jail Food Funds To Their Own Wallets?

The governor is making sheriffs sign an oath promising they won't misuse funds meant to feed jail prisoners. But some sheriffs are already pushing back.

After the revelation that several Alabama sheriffs were pocketing funds meant for feeding people in jail, Governor Kay Ivey asked every sheriff in the state to sign an “oath” pledging that the state funds would be used only for the facilitation of feeding prisoners. But it may not go far enough to keep sheriffs from skimping on prisoners’ meals.

Beginning on Sept. 1, the form sheriffs must submit to receive state money for jail food funds (typically $1.75 per inmate per day) was updated to include an oath stating that the money will be “used only for the appropriated purpose: ‘food for prisoners in the county jail.’” The affidavit is being treated as a legal document and “any evidence of misappropriation, making a false official statement, or use of office for personal gain, could be referred for criminal prosecution,” Ivey’s spokesperson Daniel Sparkman told The Appeal.

While sheriffs have skimmed from the jail food fund, prisoners across the state have reported their food is inadequate, spoiled, and contaminated with insect or rodent droppings, according to a lawsuit filed in January by the Southern Center for Human Rights and Alabama Appleseed Center for Law and Justice. In the Etowah County jail, where the “beach house sheriff” presides, prisoners were being served rotten lettuce, beans, and noodles that one man called “the worst food I’ve ever had in my life,” revealed. This wasn’t unique to Etowah County, however: Morgan County Sheriff Greg Bartlett was briefly jailed in 2009 after he kept $212,000 from the food fund while he served prisoners corndogs for breakfast, lunch, and dinner for several weeks. Many sheriffs have refused to disclose whether they took food funds or what they did with them.

But the enforcement of this oath has limitations. Any evidence would be found during an audit, which only occurs every three to four years, according to state audit officials. Additionally, the affidavit doesn’t cover the federal, county, or municipal funds that sheriffs may receive to feed their prisoners.

And other arms of government are sending a different message. Shortly after sheriffs began signing the oath in September, a state ethics commission cleared Etowah County Sheriff Todd Entrekin, who raked in roughly $750,000 from jail food funds and infamously bought a $740,000 beach house.

Meanwhile, the oath does not resolve an underlying dispute over what the law actually allows sheriffs to do with excess jail food funds.

The Depression-era law that sheriffs say gives them the right to pocket these funds may have made sense at the time; sheriffs’ homes were usually connected to the jails and they used their home kitchens to feed prisoners. But its relevance has been long debated since then. A 2008 ruling by then-Attorney General Troy King said sheriffs had a right to keep excess funds. But in 2011, his successor, Luther Strange, wrote in an opinion that sheriffs could not use the funds for “any purpose other than future expenses in feeding prisoners.” After reviewing the practice, Ivey has sided with Strange.

Aaron Littman, an attorney at the Southern Center for Human Rights, cheered Ivey’s oath and said it is another useful mechanism to hold sheriffs accountable for how they use the funds. “This affidavit confirms they are not violating the law by misappropriating public funds; it doesn’t reflect a change in what they’re able to do,” he told The Appeal. It was unlawful to take the funds before the change in the affidavit, and it remains unlawful now.”

As of Sept. 25, 13 sheriffs had submitted the signed affidavits to the comptroller’s office. This isn’t an indication of support for the policy, however, since they can send them in whenever they want as long as it’s by the end of each fiscal year.

But some sheriffs are already pushing back against the oath. The Alabama Sheriffs Association has maintained the position that pocketing the funds is still within the law and only the legislature has the ability to change that. Chilton County Sheriff John Shearon, who signed the oath, told The Appeal that there’s “a lot of gray area” surrounding the ability to keep funds, and although he saw the potential for questionable practices, he thought the state should have simply waited to pass legislation. “Everything is upside down, we really have no clue,” he said. “I think it probably could have been done a little bit different, it should have been done next year in the legislature, it should have been done in more of a controlled manner.”

He would not say whether he had kept excess food funds from his 179-bed jail. He has also refused to give the Southern Center for Human Rights access to records showing how he had used the funds, telling a paralegal he did not believe they are “subject to disclosure under state law,” according to the lawsuit. Shearon said he wanted to hand over the responsibility of feeding prisoners to someone else, calling it “nothing but a headache.”

Robert Timmons, the sheriffs association director, also told that Ivey didn’t have the authority to prevent sheriffs from keeping the money. He did not respond to requests for comment from The Appeal.

Last legislative session, bipartisan efforts to change the law or add amendments that would forbid the practice in designated counties stalled. When the legislature reconvenes in March, Alabama Appleseed will push a bill that would end the practice statewide.

We are supporting legislative efforts not because we think it’s necessary, because we think the law is clear and to once and for all put this issue to rest,” said executive director Frank Knaack. “Some sheriffs continue to think that the law seems to not apply to them.”

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Baltimore's Gun Offender Registry Is A Misfire

Established to track anyone convicted of a gun-related offense, the registry has proved to be both racist and ineffective in reducing gun violence.

An aerial view of the Baltimore City skyline
Photo Illustration by Anagraph/Photo by Patrick Smith/Getty

Baltimore's Gun Offender Registry Is A Misfire

Established to track anyone convicted of a gun-related offense, the registry has proved to be both racist and ineffective in reducing gun violence.

In October 2007, then Baltimore Mayor Sheila Dixon established a gun offender registry to help combat violence. “I want to make Baltimore the toughest place in the country on gun crimes,” Dixon said when the registry was signed into law.

But over a decade after it was created, the registry has proved to be ineffective in reducing gun violence, extremely punitive, racist, and perhaps even unconstitutional.

The Baltimore registry was modeled on a similar database created by New York City in 2006, the first in the country. It works like this: Anyone convicted of at least one gun-related offense—including nonviolent misdemeanors—in Baltimore’s Circuit or District Court is required to register their name and address with the city’s police department. Then, they must check in with the police every six months for three years and update the required information as needed.  

Those sentenced to prison on a gun-related offense have 48 hours upon release to register. Failure to comply with these conditions can result in arrest and prosecution, with possible punishment of a year in jail and/or a $1,000 fine.

Notifications about gun offenders are made to community leaders and to police districts. The registry is also accessible to the public on Baltimore’s Open Data website, displaying the name, address and date of birth of the registrant.

In 2012, when I was a patrol officer in the Baltimore Police Department’s Northern District, I was provided with a list of names and addresses of registrants who resided on my patrol post. My sergeant instructed me to verify a registrant’s place of residence and document the results in writing. The results were then forwarded to the Gun Offender Monitoring Unit. If I located the individual on the list, I noted the address was current. If I received no answer or someone at the residence told me the individual didn’t live there, a detective from the monitoring unit would then attempt to locate the person. If the registered individual could not be located, the detective would then write an arrest warrant for failure to comply, which is a misdemeanor. Because the punishment can be up to a year in jail, a jury trial could be requested.  The registry was also used to elicit information about violent crimes like armed robberies, nonfatal shootings and homicides. I performed “knock and talks” to question registrants about such crimes, but I never obtained any useful information.

In April 2011, Baltimore Circuit Court Judge Alfred Nance ruled that the gun offender registry was “unconstitutionally vague and awfully broad” when he dismissed criminal charges of “failure to register” against Adrian Phillips. In June 2010, Phillips was hit with this charge after detectives stated that his address could not be verified and that he failed to report to the gun offender monitoring unit office. Phillips insisted that he was unable to go to the office because of an injury and that he was living with his grandmother, and provided her address. When police couldn’t find him there, Phillips was charged with failure to register. His attorney argued that the registry creates “sentencing enhancements on a state law that punishes people who live in the City.”

In March 2013, however, the Maryland Court of Special Appeals upheld the constitutionality of the registry. There have been similar constitutional challenges to gun registries in New York and Chicago, but courts there have also ruled in their favor.

But some cities are rejecting gun offender registries. In November 2017, the City Council in Wilmington, Delaware, voted against creating a registry. “Our streets are saturated with these lethal firearms,” said Council Member Nnamdi Chukwuocha. But the gun registry, he said, would simply put “more punitive measures in place for individuals who need support.”

In Baltimore, meanwhile, there are growing concerns about that African Americans are disproportionately represented on the registry.  Baltimore’s population is 63 percent African American yet African Americans comprise approximately 96 percent of the registry.

The registry also has not been an effective tool in reducing violence in Baltimore. According to recently released statistics from the FBI, Baltimore had the nation’s second-highest murder rate in 2017 for cities with populations greater than 100,000. (For much of 2018 it appeared that murder could be in decline in Baltimore, but a recent spike in killings may change that.) A study of Baltimore homicides in 2017 revealed that 88 percent of the victims had been killed by a firearm.

Gun registries are reflective of gun control measures generally which have racially disparate outcomes. According to one Department of Justice study, weapons arrest rates are five times greater for African Americans than for whites. And gun arrests were at the heart of the Baltimore Police’s corrupt and federally indicted Gun Trace Task Force (GTTF); indeed, in August GTTF victim Devon Harrod filed a civil rights lawsuit against the department for a 2015 incident in which officers from the unit planted a gun near him and then coerced him into falsely confessing that the weapon was his. “Many of the already existing instances of racial profiling and overpolicing that contribute to mass incarceration come from gun control measures,” Alex Gourevitch, a professor of political science at Brown University, said in 2015. “If we really care about the condition of people living in poor Black communities, the issue isn’t just the destruction of physical lives but how low the quality of life is. The best thing would be to reduce the number of things we call crimes and instead look to things like social and economic policy.”

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