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New Evidence in the Death of a Queens Massage Worker

Surveillance video sheds some light on the police raid that killed Yang Song last year while, advocates say, the raids continue.

Yumei Shi thanks demonstrators at a rally demanding justice for Yang Song outside the 109th NYPD Precinct in Flushing on Dec. 17, 2017.
Scott Heins for The Appeal

New Evidence in the Death of a Queens Massage Worker

Surveillance video sheds some light on the police raid that killed Yang Song last year while, advocates say, the raids continue.

Seven months after Yang Song, a 38-year-old massage worker in Flushing, Queens, fell four stories to her death during a police anti-prostitution raid, the public may soon get some answers about what happened. A report expected to be released before the end of June will conclude there was no misconduct in Yang Song’s death, according to her brother and another person who viewed surveillance footage in a meeting with representatives from the Queens District Attorney’s Office earlier this month.

Queens County DA spokesperson Kim Livingston would not confirm if or when such a meeting had taken place, or when report findings will be released, if at all. But while the community waits for answers, raids like the one that led to Yang Song’s death continue in Flushing.

“These massage parlor raids must stop,” Red, an organizer with Support Ho(s)e, a sex workers’ rights group that led a rally after Yang Song’s death, told The Appeal. “The violence of police raids in the name of rescue has never been justifiable. Loss of livelihood and loss of life are all that ever come from police raids. Yang Song should still be here.”

On Nov. 25, 2017, police officers entered the building where Yang Song provided massage services on 40th Road. A short time later, she fell from a fourth-floor balcony and died the next day. Her brother Hai Song and mother, Yumei Shi, arrived in New York from China soon after and publicly raised questions about the circumstances of her death. Yang had told them by phone that she had been sexually assaulted by a man claiming to be an undercover officer, they revealed, and that she had been pressured by police to become an informant.

An autopsy report signed March 22 and shared with The Appeal acknowledges that the police raid played a role in her death. Yang Song “jumped from fourth-story balcony in attempt to evade arrest by New York City Police Department,” it states. She died as a result of blunt force trauma to her head, neck, and extremities, according to the medical examiner, whose office conducted the autopsy on Nov. 27. Assistant District Attorney Suzanne M. Bettis also confirmed to The Appeal that her office has the surveillance footage. She did not confirm showing it to Yang Song’s family.

The Queens DA’s office collected surveillance footage from multiple cameras, according to Hai Song and a second person who viewed the video but was not authorized to speak on the record: from the stairwell outside of the room where Song fell, from inside the room, and from outside the building on 40th Road. In the stairwell video, Yang Song is seen walking up the stairs with a man identified in the meeting as an undercover police officer, according to those present. In the room footage, the man is seen entering the bathroom before leaving the apartment. In the external video, a body falls through the frame, which captures neither the balcony nor the sidewalk below.

Though the video apparently does not show an officer and Yang Song directly interact in the seconds before she fell, Hai Song still isn’t satisfied, and remains skeptical of the police. “No matter why my sister fell from the building,” he told The Appeal, “there were always threats and harassment from the police before the accident.”

Since November, Hai Song and his mother have been living in a tiny room in Flushing, so narrow that the twin beds nearly touch. Food donations from a local church—orange juice, boxes of macaroni and cheese—are stacked against one wall next to a large pale-pink thermos that Hai Song recovered from the room where his sister fell. “Even when I’m sleeping, I still think” about the case, he told The Appeal on an unseasonably hot afternoon last month.

Yang Song's mother Yumei Shi continues to grieve in the one-room apartment in Flushing she is sharing with her son, Hai Song.
Scott Heins for The Appeal

Bettis’s team at the Queens DA’s office initially declined to share surveillance footage with Song’s brother and mother at a meeting this spring, according to Hai Song and civil attorney Julia Kuan, who was also at that meeting. Last month, State Assemblyman Ron Kim sent a letter to the DA’s office asking them to release “evidence and any footage they might have” to Hai Song. Soon after, Kim’s office said, the DA reportedly agreed to the viewing.

“Assemblymember Kim understands Song Hai and his mother’s continual frustration,” Tony Cao, a spokesperson for his office, told The Appeal. “She’s a victim regardless of whatever the ultimate conclusion is.”

Michael Chu, founder of the Flushing Neighborhood Watch Team, says the lack of public information on the case has allowed rumors to swirl for months. Posters seeking information about Yang Song’s death, hung by her brother, are still visible on neighborhood lampposts. “We really need a very clean, very objective investigation,” Chu said. “Show us the evidence, show us the video.”

Catherine Carbonaro, an attorney with the Legal Aid Society who represents trafficking victims and people with prostitution-related charges, said she hoped arrests targeting Asian women in massage businesses in Queens might stop or slow after Yang Song’s death. But while prostitution arrests in the borough have decreased, she said, arrests involving massage workers have barely budged. Her caseload included 59 prostitution and massage-related arrests over the last five months and the same number during the same period in 2017; this year, there were 20 Chinese or Korean defendants in those cases, compared with 29 last year. “We’re still seeing the most arrests in Queens” compared with the other four boroughs, she said. Massage businesses remain a significant target for repeat operations by police, Carbonaro added. “We have seen them go back to the same places.”

Yang Song’s death came nearly 10 months after the NYPD pledged to arrest fewer people on prostitution charges, part of a trust-building initiative with immigrant communities as President Trump’s rhetoric stoked fear. Yet Carbonaro told The Appeal her clients still report problems with the police. They often don’t understand what is happening to them in these arrests, Carbonaro said, as undercover officers attempt to get them to agree to an act of prostitution or an unlicensed massage. The NYPD did not immediately respond to a request for comment. The consequences for these arrests remain grave: the threat of deportation. Of Carbonaro’s clients who have been deported or detained by ICE, two are Korean and one (still in deportation proceedings) is Chinese.

At a "People's Monday" rally in March, activists marched through Flushing denouncing the NYPD and adding Yang Song's name to a long list of victims of police violence.
Scott Heins for The Appeal

Activists have held community actions in recent months, remembering Yang Song and demanding change. On Dec. 17, 2017, activists from the city’s sex workers’ rights community gathered outside the 109th Precinct in Flushing, calling for an end to the massage parlor arrests. Yang Song’s mother, Yumei Shi, walked the circle of about two dozen people gathered on the sidewalk, thanking each one. The anti-police brutality group NYC Shut It Down, which marches each week to honor a different person killed by police, took to the streets of Flushing on March 5 for Yang Song and demanded the decriminalization of sex work.

With the investigation nearing its conclusion, Yang Song’s family is left with little closure. Her brother says he wants a guarantee from the DA’s office that he will receive a copy of the surveillance footage and the entire police report.

Kuan, the civil lawyer, told The Appeal that her office does not have adequate evidence to pursue a lawsuit on their behalf. Setting aside the possibility of police misconduct, however, Kuan thinks Yang Song’s death should be a lesson for law enforcement. “I do believe she fell from there because there was a raid happening,” she said. “I think there’s a bigger question about the NYPD’s priorities.”

Translation and additional reporting by Rong Xiaoqing.

Alice Marie Johnson is free. Now it's time to free thousands more prisoners with unjustly long sentences.

Kim Kardashian's successful campaign to free a 63-year-old grandmother serving a life sentence in a drug case is a reminder that we need to go big on clemency. A 52-year-old grandfather named Euka Wadlington, also doing life in a drug case, would be a great place to start.

Euka Wadlington holds his grandson in his lap.

Alice Marie Johnson is free. Now it's time to free thousands more prisoners with unjustly long sentences.

Kim Kardashian's successful campaign to free a 63-year-old grandmother serving a life sentence in a drug case is a reminder that we need to go big on clemency. A 52-year-old grandfather named Euka Wadlington, also doing life in a drug case, would be a great place to start.

I’m so glad that Alice Marie Johnson’s sentence was commuted and she was released from prison last week. No buts here. I’m just glad.

It’s fundamentally outrageous that any nonviolent first-time offender ever received a prison sentence of life without the possibility of parole. It’s gross. It’s excessive. It’s deeply inhumane.

It’s also very, very normal and very, very American.

Alice Marie Johnson is not an aberration or an exception. The United States became the incarceration nation—locking up more people than any country in the world—by doing some version of what it did to Johnson to hundreds of thousands people. Alice Marie Johnson happened to have fierce advocates and a viral video that caught the attention of Kim Kardashian, whose famous husband, Kanye West, just happened to profess his love for President Trump in the weeks before her sentence was commuted.  Most men and women who are languishing for far too long in one of America’s nearly 2,000 prisons don’t have the serendipity of those circumstances.

No other developed nation sentences nonviolent offenders to life without the possibility of parole. In fact, most nations have even removed such harsh sentences for violent offenders. Indeed, if we’re really going to come to grips with mass incarceration we need to address sentencing for violent offenders as well. “The distinction between violent and nonviolent crime is not always meaningful,” Kevin Ring of Families Against Mandatory Minimums wrote recently. “Our federal sentencing laws are punitive, especially in a system without parole; ‘career offender’ is a scary term that doesn’t always fit.”

Long sentences, especially life sentences, can be a de facto death sentence without the lethal injection. Instead of strapping someone to a gurney and injecting them with poison, our nation aims to incarcerate some people until they die of disease or old age, well after they age out of committing crime. That such a sentence is not deemed cruel or unusual should tell you everything you need to know with what this nation has normalized.

In April 2014, when President Barack Obama’s administration announced a comprehensive clemency initiative for federal inmates, Attorney General Eric Holder stated that he expected at least 10,000 men and women would qualify. In the three years they had to administer the program, it was a slow, under-resourced mess in which 7,881 of the applications were never reviewed, and 8,880 people never received an answer at all.

To be granted clemency under the Obama initiative, prisoners had to meet the following six criteria:

  • They are serving a federal sentence in prison and, by operation of law, most likely would have received a substantially lower sentence if convicted of the same offense(s) today.
  • They are nonviolent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels.
  • They have served at least 10 years of their sentence.
  • They do not have a significant criminal history.
  • They have demonstrated good conduct in prison.
  • They have no history of violence before or during their current term of imprisonment.

Alice Marie Johnson, of course, met all six of those criteria and for some unknown reason the Obama administration didn’t commute her sentence. The same is no doubt true for thousands and thousands of other men and women.

I think I know at least part of what is at play here. Obama and his team, particularly at the Department of Justice, perhaps thought they were going to be passing the baton to a Hillary Clinton administration that would be keeping much of Obama’s DOJ team in place. Several families impacted by police brutality, particularly that of Eric Garner, told me that they received promises from Holder, Loretta Lynch, and even Obama himself that their federal cases would be closed before the end of his term. The family of Alton Sterling in Baton Rouge told me the very same thing. At first, the administration had a year left, then six months, then three – and it became clearer that the Obama administration had no intention of finishing those cases. Before she died, Erica Garner told me that DOJ officials told her that if they didn’t get to it, they would make sure the new team did.

Now Trump and Attorney General Jeff Sessions are at the helm of that new team.

While it’s a beautiful thing that Alice Marie Johnson’s sentence was commuted, Obama did so for 1,696 people. At his current pace, Trump might commute 10 sentences before his term is up. According to “The Mercy Lottery,” a new report from the Center on the Administration of Criminal Law at NYU Law School, approximately 36,000 people sentenced to federal prison sought clemency from Obama.

If Trump really wants to outdo Obama, this is his big chance. Recently Trump said he wants NFL players who took a knee in protest of racial injustice to submit names of the men and women they would like to see pardoned or get their sentences commuted.

Frankly, I don’t think we’re talking about a short list of names that needs to be submitted but instead perhaps tens of thousands of names. All the names can be submitted, of course, but Trump must fund and form a credible task force to work through each case much more efficiently than the Obama administration. While the task force can certainly lean on the criteria that Obama used, instead of requiring all six criteria be met for a sentence to be commuted, the group should consider requiring just some of them.

But even if the administration does stick to requiring all six guidelines, thousands and thousands men and women meet them and are simply waiting to receive clemency.

Emotionally, it’s easier for people in power to ignore numbers than it is for them to ignore names and stories. So when we say thousands of people deserve clemency, it has nowhere near the impact of saying their names, showing their photos, sharing videos, and making them completely human.

Alice Marie Johnson became human for millions of Americans when we saw a video of her telling her story behind bars. That story eventually gripped Kim Kardashian and she just so happened to have enough influence and access to share the story with Donald Trump. Just in case this is how we’re going to be forced to get commutations, I must tell you about a brilliant man named Euka Wadlington who should have been freed from prison many years ago.

It’s genuinely one of the most despicable stories of injustice I’ve ever heard. In 1998, unbeknownst to Wadlington, a former friend was working undercover for the Drug Enforcement Administration. For months, this man hounded Wadlington, a Chicago-area resident, asking him to sell drugs with him. For months, Wadlington told him no and that he had left that lifestyle behind. He had gotten a job in construction and had started a family.

Let me pause right there.

It’s gross that our government is in the business of sending former friends to vulnerable people to beg them to sell drugs. This is not real. It’s a fabricated scenario playing on the emotions and financial needs of a person. Eventually, Wadlington relented. He owed the man money from a previous car wash venture and decided he could potentially use the deal to repay the debt.

When Wadlington showed up at a hotel near Chicago’s Midway Airport for the drug deal, it was all a ruse set up by the federal government. He didn’t even have any drugs or guns when he was arrested. All he had was $1 in his wallet. But because he showed up for the fake deal, he committed a federal offense.

Wadlington’s trial in federal court during the spring of 1999 was equally unjust. Because he was never caught with any drugs, federal prosecutors relied entirely on the testimony of his alleged co-conspirators as well as others involved in the local drug scene to establish his guilt. Relying on such witnesses instead of concrete evidence like seized drugs seemed risky at first. One prosecution witness was so dishonest that Wadlington’s attorney asked him, in open court, “Do you make this up as you go along?” Another witness admitted on the stand that she lied when she told federal investigators that she had seen Wadlington package cocaine into resealable plastic bags.

But, I kid you not, when it was all over, a jury convicted Wadlington and a federal judge handed down two sentences of life without the possibility of parole.

Euka Wadlington with his GED students.

For nearly 20 years, our federal government has spent millions of dollars keeping Wadlington, who is now 52, behind bars. He’s not had an incident report in his entire sentence in the federal Bureau of Prisons. Family members have died. Like Alice Marie Johnson, his kids have now had kids. And somehow, maintaining hope, Wadlington has used the time to better himself, accumulating dozens of awards and training certificates, including GED instructor and re-entry mentor.

Here we are with a man who was sentenced to life in federal prison in a drug case for not actually selling drugs, but for trying to.

The Obama administration should have granted Euka Wadlington clemency and set him free. But it did not. Here’s hoping that the Trump administration can right this wrong and, strange as it sounds, perhaps do for thousands of others what should have already been done.

More in Explainers

Bail Reform: Explained

Illustration by Hisashi Okawa

Bail Reform: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In San Francisco, 64-year-old Kenneth Humphrey spent a year in jail, held on a $350,000 bond he could not pay, after being accused of entering a man’s home and stealing $7 and a bottle of cologne. In setting Humphrey’s bail amount, the trial court made no inquiry into his ability to pay or any alternatives to cash bail, but instead relied on California’s preset bail schedules.

In January, he experienced hope after the California Court of Appeals granted him a new bail hearing and ordered the judge must consider Humphrey’s ability to pay. In powerful language, the court wrote: “[T]he problem this case presents does not result from the sudden application of a new and unexpected judicial duty. … [I]t stems instead from the enduring unwillingness of our society, including the courts . . . to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”

The California attorney general promised not to appeal the ruling, but the San Francisco district attorney’s office at first delayed Mr. Humphrey’s bail hearing, arguing that the lower court lacked jurisdiction until the higher court certified the opinion. “Just because the attorney general is not seeking review doesn’t mean that the Supreme Court won’t decide to review on its own.” And in fact, it decided to do just that in Mayjust weeks after a judge finally agreed to Humphrey’s release.

As many as 500,000 people are held around the country in local jails because of their inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not yet convicted, of crimes. They often are locked up only for inability to pay the amount determined by a judge, frequently based on a preset bail schedule, and not because of an individual assessment based on risk or threat to public safety. If someone is unable to pay bail, he or she remains locked up until his or her case resolves through a plea, until trial is over, or until bail is paid. This can range from days to years.

1. What we know about bail

Nationwide, more than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail. Black and Hispanic defendants are much more likely to be held on bail than white defendants. [Criminal Justice Policy Program / Harvard Law School]

Often, those being held on bail have simply been accused of low-level offenses. Seventy-five percent of pretrial detainees have been charged with only drug or property crimes. [Criminal Justice Policy Program / Harvard Law School]

Being jailed pretrial has collateral consequences: It leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. [The Price of Freedom / Human Rights Watch]

A study out of Kentucky found that people who are held because they cannot afford bail are 40 percent more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic. [The Hidden Costs of Pretrial Detention]

We also know that people are more likely to be acquitted if they pay bail, in part because they are less likely to take plea deals just to get out of jail. Being released before trial closely correlates with a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. [The Atlantic / Bouree Lam] [Pretrial Justice Institute]

One study suggests that those people are “over three times more likely to be sentenced to prison” and “over four times more likely to be sentenced to jail” than those who are not detained pretrial. [Criminal Justice Policy Program / Harvard Law School]

Similarly, a study out of Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” [The Heavy Costs of High Bail / Arpit Gupta et al.]

Meanwhile, there are costs to taxpayers as well. Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. [Prison Policy Initiative] There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. [Court Appearance Notification System: Evaluation Highlights / Multnomah County]

2. The Role of the Bail Industry

In states and cities that want to reform their use of bail, the biggest obstacle remains the bail bond industry. For-profit bail bonds are legal in almost every state.

Money bail has been taken over by private companies that make profits from those who cannot afford it. Bail bond costs are often covered by family members, which puts an additional financial strain on the already-struggling children of the jailed. [Ella Baker Center / Who Pays?] Many people spent years paying off their bail amounts to private insurers. [Report / Color of Change and ACLU]

There’s some evidence that the bail bonds industry is intentionally intimidating decision-makers to urge them to oppose bail reform. Duane Chapman, star of the reality television series “Dog the Bounty Hunter,” has sat in the front row staring down lawmakers contemplating striking down monetary bail. [Jazmine Ullola / L0s Angeles Times]

Bail bond companies regularly give campaign contributions to prosecutors. Eric Gonzalez, the Brooklyn DA often thought of as a progressive, accepted such contributions. After the media found out about it, he gave the money back. [Carimah Townes / The Appeal] Dallas District Attorney Faith Johnson similarly received $5,385 from 13 bail bond companies and the Texas Bail PAC.

3. A Growing Consensus That America’s Bail System is Broken

A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.

The public wants to see change. In Arizona, a poll conducted by the state’s Supreme Court found that two-thirds of those surveyed thought that only those who are a safety risk or unlikely to appear in court should be held for failure to pay bail. [Andrea Kelly / Arizona Public Media]

Eliminating cash bail also has wide support among law enforcement, like Cook County Sheriff Tom Dart and victims’-rights groups like Marsy’s Law for Illinois. [Reuters / Fiona Ortiz]

And it has bipartisan support. Conservative groups are demanding change to the cash bail system. In Ohio, for example, the conservative Buckeye Institute released a report calling the state’s cash bail system an “inefficient, expensive, unfair means of protecting communities that has proven no guarantee to stopping repeat offenders.” [Peter Krouse /]

Judges are also calling for reform to the bail system, including California’s Chief Justice Tani Cantil-Sakauye and former New York Chief Judge Jonathan Lippman. [Jonathan Lippman / Washington Post]

And celebrities are spreading the word. Athletes like Malcolm Jenkins and Anquan Boldin are advocating against money bail. [Malcolm Jenkins & Anquan Boldin / The Appeal]

And so are musicians like Common and Jay Z. [Shawn Carter / Time]

Two video clips, one from John Oliver’s show, and the other one a mini-documentary from Brave New Films, discuss the problems with the cash bail system.

[Last Week Tonight With John Oliver]

[Debunking Common Bail Myths / Brave New Films]

4. The Role of Prosecutors

Prosecutors have the ability to reduce the use of cash bail. While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early, and establish a presumption of recommending release. [Casey Tolan / Slate]

Fair and Just Prosecution (FJP), a group that brings together newly elected local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “publicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” [Issues at a Glance: Bail Reform / Fair and Just Prosecution] Miriam Krinsky, executive director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.” [Miriam Krinsky / USA Today]

In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.” [Chicago Tribune / Steve Schmadeke]

Harris County, Texas, District Attorney Kim Ogg supported the elimination of bail for people accused of misdemeanors and wrote a brief from her office supporting the use of pretrial assessments for those accused of low level crimes. [Brief / Kim Ogg’s Office] More than 60 prosecutors from around the country, including Kim Foxx, George Gascon, and Mark Gonzalez signed an amicus brief in support of the plaintiffs in the Harris County litigation. [Brief Amici]

The California attorney general also wrote a brief supporting the elimination of the cash bail system in California. [Brief]

In February 2018, newly elected Philadelphia District Attorney Larry Krasner announced that his office would stop seeking bail on 25 criminal charges, which include retail burglary, prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, and many drug offenses. [Alec Ward / Reason]

During the primary in Bexar County, Texas,  Democratic candidate Joe Gonzales stressed the need to reform cash bail and “even the scales of justice” “so that people who commit minor offenses don’t stay in jail because they don’t have enough money to post bond.” He handily beat incumbent Nico LaHood in the primary. [Elizabeth Zavala / My San Antonio] Interim Contra Costa District Attorney Diana Becton has also expressed support for bail reform. [Sukey Lewis / KQED]

5. Bail Funds Make a Difference

While not a long-term solution, bail funds provide a short-term are helping to alleviate the burden of excessive bail on the poor. They are nonprofit organizations that front bond payments for those who cannot afford them. [Alysia Santo / The Marshall Project]

On Mother’s Day 2017 and 2018, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. [Human Rights Watch] [No More Money Bail] Similar bailouts are happening around the country. [Bryce Covert/The Appeal]

The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country. [Bronx Freedom Fund] [Chicago Community Bond Fund]

Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. [Alysia Santo / The Marshall Project] The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it. [Sept. 20, 2017 Edition / The Appeal Newsletter]

6. Courts are Taking Action

Courts are striking down existing bail systems as unconstitutional. Challenges to existing systems are pending in local courts around the country, in both red and blue states. State attorneys general and other members of law enforcement are also recognizing that cash bail hurts the poor.

On Jan. 21, 2018, civil rights groups sued Dallas County, alleging state and U.S. constitutional violations in its cash bail system. According to the complaint, Dallas County operates a two-tiered system in which poor defendants are detained indefinitely while wealthy defendants purchase their freedom pretrial. [Jolie McCullough / Texas Tribune] One of the plaintiffs is Shannon Daves, a 47-year-old homeless woman who the county held in solitary confinement because she could not afford the $500 bail set on her misdemeanor case. [C.J. Ciaramella / Reason]

In Dutchess County, New York, one judge became impatient with the protracted bail reform process and issued a scathing opinion attacking the money bail system. Police had arrested Christopher Kunkeli for shoplifting a vacuum cleaner from Target, a misdemeanor. A lower court judge ordered his bail set at $5,000, nearly half his annual income. Kunkeli remained in jail for nearly five months until he agreed to a plea deal. After Kunkeli’s release, the New York Civil Liberties Union filed a lawsuit on his behalf, contesting the court’s practice of setting bail without considering a defendant’s ability to pay. On Jan. 31, 2018, Justice Maria Rosa ruled that this system violates the Constitution’s due process and equal protection clauses. In her ruling, she noted that in New York, 60 percent of individuals are held in jail without a conviction, before their cases go trial; in New York City, that number is as high as 75 percent. [Alan Feuer / New York Times]

In April 2017, a federal judge put a pause on Houston’s use of its bail system, which it considered probably unconstitutional. [ODonnell v. Harris County] Prior to the 2016 filing, Harris County routinely jailed people for failure to pay bail on misdemeanors like driving without a license. [Federal Judge Strikes Down Houston-Area Bail System / Courthouse News Service] [New York Times / Michael Hardy] The Fifth Circuit largely upheld this decision, recognizing the two-tiered system of justice in Houston, although it allowed the county to take up to 48 hours after the arrest to provide the defendants with a hearing. [Jollie McCullough / Texas Tribune]

In June 2017, a Cook County judge issued an order requiring Chicago judges to consider a defendant’s ability to pay before setting bail. [Richard Oppel / New York Times] [Circuit Court of Cook County]

Last fall, a federal judge struck down the monetary bail system used against misdemeanor defendants in Calhoun, Georgia, as unconstitutional. [Jon Schuppe / NBC] The Department of Justice under President Barack Obama filed a brief in the case supporting the elimination of money bail. [Pete Williams / NBC] A similar lawsuit is pending in Alabama. [Amy Yurkanin /] And lawsuits have also been filed in Tennessee, Florida, and New York.

Officials in Nashville are contemplating significant changes after the nonprofit law firm Civil Rights Corps threatened to sue over its bail system. A group of judges, public defenders, and district attorneys is putting together a proposed plan to minimize cash bail, with the aim of starting reforms in March. [Adam Tamburin / The Tennessean]

In Massachusetts last August, the Supreme Judicial Court ruled that judges must consider a defendant’s inability to pay when setting bail. And when the judge sets an unaffordable cash bail that will result in extended pretrial detention, he must issue written or orally recorded findings of fact. [Bob Oaks / WBUR]

7. The Future of Bail Reform

State and federal lawmakers are debating legislation to eliminate or reduce the use of cash bail.

Alaska, a largely Republican “tough on crime” state, drastically curtailed cash bail. The new law, which took effect on Jan. 1, 2018, sought to stave off the rapid increase in the state’s incarcerated population, which grew by 27 percent between 2005 and 2014. The law created a pretrial enforcement division to determine, on a case-by-case basis, the likelihood that a defendant will show up in court or commit crimes if released. The judge reviews the risk assessment score, but prosecutors and defense attorneys can argue for harsher or lighter restrictions before the judge makes a decision. The judge can impose secured bail bonds only for individuals charged with violent offenses and with high risk scores, while those charged with nonviolent misdemeanors must be released. For all others, there is a presumption of release. [Bryce Covert / The Appeal]

With the backing of Atlanta Mayor Keisha Bottoms (who was pushed by civil rights groups and grassroots advocates), the City Council approved an ordinance in February 2018 to eliminate the cash bail requirement in municipal court for nonviolent misdemeanor charges or city ordinance violations. [Rhonda Cook / Atlanta Journal-Constitution]

On Feb. 1, 2018, the Philadelphia City Council unanimously passed a nonbinding resolution urging the DA, the state legislature, and state Supreme Court to reduce their reliance on cash bail. In a city where one-third of all defendants are incarcerated because they cannot afford bail,  these reforms could have far-reaching implications for Philadelphia’s criminal justice system. The city’s DA, Larry Krasner, has already articulated plans to cease requesting cash bail for certain offenses. [Teresa Mathew / CityLab]

In 2017, bail reform legislation also passed in Connecticut [Huffington Post / Nick Wing] and New Orleans. [The New Orleans Advocate / Jessica Williams] New Jersey ended its cash bail system in 2014. [Reason / Scott Shackford]

Washington, D.C. largely eliminated cash bail in 1992, and now holds only those defendants deemed too dangerous to release. About 90 percent appear for their court dates. The Washington Post’s editorial board explained that although revamping pretrial release systems that rely on cash bail may involve upfront costs, it is a worthwhile and necessary investment. “In the longer term,” the editorial stated, “bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” [Editorial Board / Washington Post]

In Ohio, two Republican state legislators introduced a bail reform bill in December of 2017. The bill would require judges to use validated risk-assessment tools when setting bail — a practice that occurs already in some but not all parts of the state. The bill is supported by the conservative Buckeye Institute’s Legal Center. [Peter Krouse /] The ACLU has described the bill as an important first step, but has warned that more robust change is necessary to deprioritize cash bail and ensure that defendants have due process protections and the assistance of counsel at bail hearings. [Caitlin Hill /]

Also in 2017, New Mexico voters approved a constitutional amendment that limited the use of cash bail. While the language is limited, advocates are hopeful that it will provide guidance for judges making determinations on pretrial detention. [Nick Wing / Huffington Post]

In July 2017, Senators Kamala Harris and Rand Paul introduced legislation to encourage states to reform cash bail systems. [Kamala Harris & Rand Paul / New York Times] [Text of Proposed Bill] [Larry Hannan / The Appeal]

In August 2017, the policy-making body of the American Bar Association approved a resolution that “urges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds, that permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance, and that pretrial detention should never occur due solely to an inability to pay.” [American Bar Association]

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