The Appeal Podcast Episode 9: The History––and Promise––of the Bail Abolition Movement

One in five people incarcerated in this country have not been convicted of wrongdoing. Their crime? Being poor in a country that tethers pre-trial freedom to one’s wealth. In this episode we discuss with journalist Bryce Covert emerging efforts—from New York to New Orleans to Chicago—to bond people out of jail as both a temporary form of relief and as part of a long term strategy to get rid of cash bail. The Appeal is available on iTunes, Soundcloud and LibSyn RSS. You can also check us out on Twitter.

Transcript

Adam Johnson: Hi welcome to The Appeal Podcast. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember you can follow us on social media, Twitter @TheAppealPod, like us on Facebook and remember to subscribe on iTunes if you can. By now you’ve probably heard of the emerging bond abolition movement, which is a movement that aims to end the use of cash bail by bailing out those who are suffering the most egregious and obvious harm and undermining the fundamental logic of the cash bail system. A parallel movement born from necessity has reemerged after mostly going dormant for decades, and that’s that of court watching. As so called reformers make promises to ease up on the use of cash bail a sprawling network of court watchers has popped up in the last few months and years from Chicago to New York to New Orleans, exposing the gap between high minded promises from DAs and judges and the actual on the ground reality. Our guest today, journalist Bryce Covert has written about the court watch movement for The Appeal. What its tactics are, what its scope is, and what its ultimate ideological aims are.

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Bryce Covert: In New Orleans they have sort of a wider mission where they go in, they observe what’s going on and then they make, they talk to researchers and make best recommendations and try to really push officials and lawmakers to take up their recommendations. Again, court watching, it’s a tactic, it’s not supposed to be something that is in and of itself the end of the road.

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Adam: Thank you Bryce for coming on.

Bryce Covert: Thank you so much for having me on.

Adam: So, um, we have touched on the efforts to do court watching and the broader bond reform movement, or bond abolition movement I should say, on the show before but we’ve never really dived into it. And this is something that your article does very well. Can we start by giving a quick little primer for our listeners about what the court watch movement that’s emerged in places like New York, Chicago, and New Orleans, um, what it’s sort of broader objectives are and what its tactics are and how it dovetails with the parallel bond abolition or bond reform movement?

Bryce Covert: Absolutely. So I think it’s important first to note that while there’s this new sort of resurgence in court watching, it’s not actually a new phenomenon, um, it goes back at least to the 1970s when the League of Women Voters in Chicago decided to monitor misdemeanor courts and see what was happening there. Um, and Chicago has seen sort of fits and starts of court watching a number of times over the years. Um, but the resurgence right now is really a response to some of the success that the bond abolition movement has had. Um, you know, there’s been sort of a swell of attention to bail in this country, how it is set, whether or not people can afford it, what that means for justice and for low income people who are getting jailed because they don’t have enough money to make bail. That has led to a lot of reforms or at least promises from lawmakers and court officials that things are going to change.

Adam: Right.

Bryce Covert: Which I think is very gratifying for people in the movement. However, as everyone I talked to for this piece pointed out, you know, it’s one thing to say we’re going to change our policies and it’s another thing for that change to actually happen, particularly in the court system, you know, judges run their courtrooms as someone described it it’s sort of like they feel like they’re sort of king of the castle and they decide what happens in their courtroom. Prosecutors make decisions about whether and how much to ask for bail. Those things may not immediately change even after these policy announcements are made. So there’s sort of this push for court watching as the next step to make sure that if there are changes made or reforms promised that those actually take place in the courtroom and then if they don’t, that those actors who made the promises are held accountable. And most of the court watching programs that I talked to that are up and running really started in response to a specific change. Um, you know, in New York, the Brooklyn DA who was running for election early last year, Eric Gonzalez announced that his office wasn’t going to seek bail in most misdemeanor cases, although that included what he said, “certain exemptions.” And so Court Watch NYC launched mostly because the bail fund program that had already been up and running in Brooklyn still was receiving lots of requests. Basically the same number of requests as before that announcement was made. So they were saying, ‘Okay, well, so what’s going on? If he said he’s not going to seek bail as often and yet people are coming to us saying I need help with bail. Where’s the disconnect?’ And so they go into courtrooms in New York, the courts are open to the public, um, and they train people, give them sheets to fill out, it’s pretty standardized. People go into the courtroom, sit for the first arraignment where bail amounts are typically set and then make notes on a whole bunch of things to gather data and see what’s going on. And they also in New York, sort of report back what’s happening in real time to some extent on their Twitter account. And what was interesting there is that they started saying, you know, ‘There was bail set in this misdemeanor case,’ ‘There was bail sought in this misdemeanor case.’ And then the Brooklyn DAs office responded on Twitter to say, ‘Oh no, that falls into the exemptions that we talked about,’ which helps illuminate the way these policies are or are not doing what people might have thought from the initial announcements.

Adam: A real quick disclosure, our producer Florence and I, for our other podcast, um, Citations Needed did a fundraiser for NYC Court Watch in May. So I’m not exactly a totally neutral observer but just needed to point that out before we move on. So the, um, the Chicago Court Watch Movement started similarly, I believe it started after there was a court ruling that said that they could not set bail for what people can afford by the county courts. And then there was almost widespread just complete ignorance of this ruling. And then so the Court Watch, similar to New York kind of emerged organically because what district attorneys and what courts were saying they were going to do was wildly different from what they actually did, and this is something you note in your piece about how exhausting this is because this is not as if they’re being necessarily activists and saying they need to do X. They’re are simply saying, ‘You said you would do X and you haven’t done X.’ Which is the whole reason that this whole phenomenon emerged. To what extent is there no real mechanism or check because in theory the media ought to be doing a lot of this stuff right? But they’re not. To what extent have the institutions that are supposed to be monitoring these completely failed and provided the impetus for activists to kind of step in and play that role?

Bryce Covert: Well, I think one of the biggest motivations besides just wanting to be in there and see what’s happening and hold them accountable is also a collection of data which is to some extent the same thing, but there is a real lack of collection and publication of data of who’s going through the system, what’s happening to them, what are the charges, what are the charges really beyond, you know, the sort of, you know, larceny or something like that? And his bail asked? What is the bail amount? Is it lining up with these policies? The people I talked to pretty much uniformly said this data could easily be collected and published by these systems on their own. We don’t want to be the ones doing this. It’s a lot of work, but it’s not for the most part in most of these places. So they are going in, like I said, they in New York City where I was able to go in and watch someone actually have a Court Watch shift, they go in with standard forms that have them pay attention to a number of factors and those forms are then all collected and collated and analyzed and then Court Watch NYC looks for trends and publishes what it’s found. Um, and part of that data collection is to say, ‘Okay, so you said you weren’t going to be seeking bail in misdemeanor cases, what we found was, you know, X Y, Z when we went in,’ and they can make these reports again, the systems could be doing that on their own and that would serve as somewhat of a check because then anyone could get that data and sort of match it up against the promises and that’s not really happening. Um, certainly the media can also go into courtrooms. I mean, I went in and I went in with a court watcher, but as I just sort of describe it is a lot of work because the courts are not collecting and publishing this data, um, that they almost certainly have, um, it’s a lot of hours of man time and then analyzing. I mean, these forms are filled out by hand. That all has to be looked over by hand, entered into a database and then analyzed. It’s a lot of work. The media could do it as well, but court watchers have decided to take it upon themselves to be the ones to hold the systems accountable in this way.

Adam: One of the things, and I’m going to maybe ask you to play media critic a little bit here, but I think one of the things that Court Watch NYC and the Chicago court watchers have done is they’ve, they’ve decided that they’re going to sort of tell the story of the whole person and not just look at people as, you know, defendants as numbers, as criminals, as suspects. Um, and if you follow their Twitter feeds, as I recommend people do, they’ll tell the story about, you know, what they went through, how they got to their situation, what their financial situation is, whether or not they’re destitute or whether or not they have some issues and so much of court reporting in this country and so much criminal reporting is seen as crime reporting or this new thing called mayhem reporting. Um, and I think that there’s a kind of dehumanization and a reduction of people to these sort of, these widgets that kind of come through this criminal justice machine. And I’m curious from your discussions with both the Chicago, New York and even New Orleans, to what extent do court watchers feel like they want to, they also want to expand the kind of moral grammar of how we talk about people who end up in front of a judge?

Bryce Covert: I think they really are interested in trying to do sort of both at once, particularly in New York and Chicago and Massachusetts, the forms that they go in with in New York for example, so they have the one I’ve been talking about which is sort of the quantitative survey that’s, you know, you’re trying to check boxes in a sort of standard way for everyone to go through so that you can get that data on demographic and things like that. But they also have a form that’s more qualitative and it’s about what did you see? What happened with this person? What was the real story behind their charges? Um, did it seem fair? Did it seem like justice was carried out? And they don’t do that for every single case. I think that would be really difficult to do, but they are prompted to do that for the ones that stand out to them and then the Court Watch NYC group then, like you said, on their Twitter account for example, or in their newsletter will sort of highlight some of these cases as case studies and also to give people better understanding of what we really mean when we talk about these numbers and what we mean when we talk about these charges and I know for example, it’s been really powerful for the court watchers themselves. The one that I shadowed, her name is Louise. She goes by Ellie. She talked a lot about, you know, you hear something like “larceny” and you say, ‘Okay, well that sounds really bad. They clearly did something wrong’ and then you hear what the real charge is that they live in deep poverty and they stole a couple bars of soap and we’re talking about the exact same thing, but we’re talking about it in very different ways and it has a really different meaning. And even that day, you know, I witnessed a number of things like that. There was an elderly woman who was charged with assault and then when they discussed what actually happened, it became clear that the person who was assaulted was her. Someone had come up and taken her cane, assaulted her, she reported it to the police and then somehow she was the one that ended up being arrested. A similar thing with a young woman who was there again charged with assault and she was saying what happened was, ‘I was being domestically abused, um, my partner slapped me in the face and wouldn’t let me leave the apartment. And all the evidence being used against me to say that I assaulted him is coming from my abuser himself.’

Adam: Right.

Bryce Covert: So I think they are interested in gathering data. They also know that there are limits to that, you know, they’re not going to catch everything in the courtroom. The courtrooms are public, but they are not super accessible. It’s hard to hear, it is not designed to give the audience all of the information that’s being discussed among the prosecutor, the defender and the judge. Um, so they’re not going to get completely accurate data, although they will try, a lot of what they’re doing is again, holding it accountable, but also trying to get that more qualitative stuff that gives people an understanding of what really happens in a courtroom and who these people are who are getting caught up in the system.

Adam: Obviously you can’t really talk about criminal justice in this country, um, and I would say pretty much any settler colony without talking about racism and race. Um, what are the, what are the racial disparities in bail sentencing? By definition, it’s a way of just punishing the poor because you’re, you know, as Rachel Foran noted in one interview, there was the couple days after Harvey Weinstein had made bail, it was all prearranged a million dollars in and out. This is someone reported of, you know, multiple, multiple acts of sexual assault and violence, whereas one client that they had, or one person that they had a public defender, I think I, yeah, I think they stole like $500 worth of electronics and were held with a $3,000 bail. To what extent does, I mean obviously economic disparity matters, what extent do we have any numbers on the kind of racial disparity aspect of this and how much of that is animating these efforts for reform?

Bryce Covert: I think it’s very much front and center in both bail reform efforts and also court watching efforts to be paying attention to what’s going on with racial disparities. I mean we already know that the vast majority of people who are caught in the criminal justice system are people of color disproportionately so, um, and so Court Watch NYC for example, is tracking as best they can, that demographic information on their court watching sheets and have already found that the vast majority of cases that they’re watching involve people of color, particularly black people and Latino or Latina people. Um, so I don’t think that they have the data quite yet to be able to say, you know, black people are getting set disproportionately higher bail amounts, but like you said, judges are the ones who decide to set bail. Um, there was an analysis recently by FiveThirtyEight that found that the amount of bail you are set varies wildly with which judge you get put in front of, so that it is very subjective. When I was there that day, for example, there was no discussion of whether people could afford to pay the amounts being requested and many of them were in the tens of thousands of dollars. Poverty obviously plays a role in this, but I think it’s likely that race also plays a role as well. We don’t have that data, but given the demographics of who is going through and also given how many people of color tend to be low income I think it’s likely that a lot of them are being put in jail because they can’t afford the bail that they are set.

Adam: So I think one of the things with court watching, and I know the bond reform movement in general, is this idea that they want to be obsolete within a few years, that bailing people out of prison and court watching are actually, they’re just two tactics were broader goal of getting rid of a system of cash bail altogether, or getting rid of a system that puts people in cages before they’ve even seen a trial. I know that in some counties I know that in Cook County it’s upwards of ninety percent of people in county jails in this country have not been found guilty of a crime. And I know that, I know that nationwide is twenty to twenty five percent of people in this country that are currently behind behind bars have not been convicted of anything. Um, can we talk about the drive to make oneself obsolete and the idea that it’s a tactic? And perhaps if you could comment on maybe what could be in the future a kind of moral hazard of creating these bond funds where they kind of become a release valve as opposed to something that meaningfully abolishes a very core part of our carceral system.

Bryce Covert: Yeah, absolutely. So I’ve spoken to bond funds, um, before more generally about just the work that they do and most of them are very clear that they want to avoid just what you described, that they are not an end, that they are a means toward highlighting disparities in bail and ultimately pushing to get rid of bail, usually is their goal. And that is not always the outcome. Sharlyn Grace, for example, who runs the bail fund in Chicago, described to me talking with a municipality that wanted to start its own bail fund. And she was like, ‘Or you could just stop asking for bail.’ You know.

Adam: Yeah. Right.

Bryce Covert: The point here is that we are trying to offer people relief and also by offering relief what bail funds are trying to demonstrate is people can be released and then be safe in their communities and return to court and there really is not a risk of letting people go home while their cases are moving forward and they have pretty good sort of proof of that to offer up at this point. That is sort of the end goal and that can they hope sort of help spur reform. If they are just the end of the road and it’s saying, ‘Okay, well we have bail, it is what it is, but at least we’re offering to help some people get out.’ That’s not what they want to be doing. Um, and court watching is very similar. Um, everyone I spoke to talked about it in the same way. We don’t want this to be an end in and of itself. It’s not about getting people into the courtroom so they can see what’s happening, sort of raising their awareness and moving on. You want to start a court watching program if you think that it is something that can help you pursue greater change. For example in most of these places it’s about, you know, there’s been a promise made to change practices and institute some kind of reform and we think that by going into courts we can either ensure that that is happening or keep up momentum so that doesn’t fade out because that can also occur. In New Orleans, they have sort of a wider mission where they go in, they observe what’s going on and then they make, they talk to researchers and make best recommendations and try to really push officials and lawmakers to take up their recommendations. Again, court watching, it’s a tactic. It’s not supposed to be something that is in and of itself the end of the road. And so I think that’s the way they are all talking now. I think there’s interest in starting court watching programs in other cities, particularly in the south, and all of them are talking to each other and trying to share best practices.

Adam: Right.

Bryce Covert: And it’s very clear to me that the people who are already running them are trying to pass that message on and say, ‘Look, only do this if you think it is a tactic toward a larger goal and it may not be the right tactic depending on what’s going on in your community and what your goals are.’

Adam: Um, I’m want to talk about this sort of rhetorical habit of delineating between kind of good and bad victims in the context of bail and bail reform. So there’s kind of the misdemeanor and the felony. There’s the violent/nonviolent. I know there’s an effort in certain abolitionist quarters to really avoid doing that because everyone is by definition innocent until proven guilty. So the actual nature of the crime is irrelevant. And I know this is something a lot of even so called reformist prosecutors have kind of exploited where there was always this little qualifier. There’s always this little caveat. Well, they’ll say ‘We’re ending bail for misdemeanors, with some exceptions,’ you know, the sort of fine print. ‘We’re ending bail reform for nonviolent offenders, with some exceptions.’ Because even things like, you know, allegedly having a gun possession is considered a violent offense. Is that really violent? I don’t know. Maybe not. Um, to what extent do you think that, uh, that reformers should either embrace or avoid this type of, this type of delineation? I’m, I’m sort of editorializing a little bit, but I’m curious what your thoughts are on that and what, what in your experience, um, bond reformer, bond abolitionist groups think about those kinds of concepts.

Bryce Covert: Well I think at the very least, the value here is that they are able to say, okay, you hear violent, you hear, for example, like you said, um, violent charge and what it really is, is they are accused of having a gun. Is that something that we feel rises to the same level of actually shooting a gun? Again, you know, you hear larceny, you know, do we feel as strongly about robbing a bank as we do as stealing a couple rolls of toilet paper? Trying to get more into the variations of what all these things mean, the differences in how people are charged. I mean, there’s a lot of discretion in what you charge people with when you’re a police officer.

Adam: Right.

Bryce Covert:  I think that’s one of the really big values that court watching can do. I don’t think the general public has much understanding of the gradations within charges. Um, and so for example, in New York City next they’re going to be focusing on drug charges specifically. I mean they’ll still be doing the overall court watching that they’re doing, but they’re going to have a supplemental form to really pay attention to drug charges. And what was interesting to me is one of the things that are going to focus on is the details of the charges. Is it about actually possessing drugs or is it about paraphernalia? Do they talk about residue? Was there an undercover cop involved? All these things that get papered over when you hear someone was charged with drug possession, it could be that they were sitting on pounds and pounds of cocaine. It could also be that they had a little bit of residue and there was some undercover cop involved who may have played a role that we may not think was quite fair in sort of getting them to enter into a drug sale or something like that. Um, a lot of that is not part of the story when we hear about these charges. And I think Court Watch NYC in particular is looking to pull that out and expose it to the public.

Adam: Let’s talk numbers here real quick vis-à-vis that the court watch groups in New York  have done since they launched in February, they’ve watched over two hundred court shifts, collected data on 544 cases, uh, in its first month alone and they’ve trained more than three hundred watchers. Um, I know that I’ve had people I know who sort of think that it’s a super useful direct way of helping and they volunteered. I didn’t know it was three hundred, three hundred actually seems like a lot. Um, to what extent is there, I know it’s not new, I know it’s been around for decades, but to what extent is this new resurgence, is there any sense of the scope in terms of how popular it’s become? A lot of activism there’s, there’s kind of a sense of feudalism that you sort of what’s the point, you can’t really do much? Um, it seems like the bond reform movement has had a lot of success, I would say success, but a lot of success really switching the narrative and changing the narrative pretty quickly. Can you give us a sense, and this will sort of end on this note, I want to try to end on a positive note, of how much this has kind of taken off and what the prospects are in your opinion in the next couple of years?

Bryce Covert:  Well, first of all, like you said, New York City alone has trained hundreds of watchers. I think that was as of May perhaps. So I’m sure that they have changed even more.

Adam: Okay. Right.

Bryce Covert:  Um, they told me that they have people watching first appearances six days a week in both Brooklyn and Manhattan. And that’s a lot, that’s a lot of, uh, courtrooms to be in that requires a lot of people. And remember also that it’s not just the watchers that you need to train, but you also need people to take in the sheets that they fill out, enter them into a database, go through the analysis. It’s a lot of people and it sounds like they have really been able to attract people to this cause. Um, I think one of the things drawing people towards it is, particularly in this moment when so much is happening, the news is pretty bleak, uh, something like court watching gives people a concrete thing to do that can be useful and potentially helpful. So there seems to be a lot of appetite for something like this. It’s also in your local community. Um, I will say that it seems pretty clear that it’s a lot easier to attract a lot of people in city centers than outside of them. Court Watch Massachusetts is not just in Boston but in other places as well. And um, the woman I spoke to was saying like, ‘Yes, we got a lot of people, but in some small counties it’s like ten people.’

Adam: Right.

Bryce Covert:  But maybe that’s okay also because there may not be as many hearings, you know, it’s all right. But certainly there’s going to be a lot more interest and just sheer numbers in a city than there are in some more suburban or rural places that have probably just as many issues to be paying attention to. The other thing I’ll say is that New Orleans has had this program going for ten years, so they’ve been on it for awhile, but the others are pretty recent phenomenon and there are other places across the country that are showing interest in starting their own court watching programs too. So I think it’s very likely we’ll see a whole bunch more of them in the near future and this could really spread even further if people have the interest and the time and resources to make it happen.

Adam: And, and I think the ideological commitment to making themselves irrelevant after a few years. And I think that’s kind of one of the interesting aspects of this. People are trying to start something for the purposes of eventually ending it. I think that’s interesting. Um, well that was really great. If you haven’t read it, you should go to theappeal.org and read Bryce’s article, “The Court Watch Movement Wants To Expose The ‘House of Cards:’ Prosecutors and judges across the country are starting to feel eyes on them.” At theappeal.org. Then of course, there’s some other stuff written by her. Well, thank you so much. That was great.

Bryce Covert:  Thank you so much for having me on.

Adam: Thanks to Bryce Covert, journalist and writer at The Appeal for coming on. This has been The Appeal Podcast. Remember, you can follow us on social media @TheAppealPod or on Facebook at The Appeal or subscribe to us on iTunes. I’m your host Adam Johnson. The show is produced by Florence Barrau-Adams, production assistant is Trentel Lightburn and executive producer is Sarah Leonard. Thank you so much for joining us. We’ll see you next week.