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The Black Love Bail Out Aims to Free Poor Defendants — And Teach Others To Do The Same

Photo from Philly Bail Fund / Twitter

The Black Love Bail Out Aims to Free Poor Defendants — And Teach Others To Do The Same

As part of a growing push to end the use of cash bail, a national movement is calling attention to the plight of defendants held in jail simply because they can’t afford to pay their way out.

Last month, it launched the next phase of its work: the Black Love Bail Out, timed to intersect with both Black History Month and Women’s History Month, including today’s celebration of International Women’s Day.

The National Bail Out Collective works with local groups in communities around the country to raise money from the public to free people held on bail. As with last year’s Mama’s Day Bail Out, this one is focused on getting women, femmes, and women-identified people out of jail. Organizers are highlighting the needs of Black women, in particular.

“We wanted to bring an intersectional lens to this conversation and into our movement,” explained Arissa Hall, project manager with the National Bail Fund Network, which is part of the collective. Given how male-focused much of the conversation around criminal justice reform tends to be, the aim is to “lift up how Black women are affected and impacted by the criminal justice system as well, whether it’s folks that are incarcerated or who are left to raise babies and take care of the families.”

“Organizing from the margins is important,” she added. “Once marginalized people are free, then everyone will be.”

The collective is comprised of about 20 organizations, including bail funds, community groups and Black Lives Matter affiliates. Overall, it’s raised close to a million dollars to bail people out and provide them with services. Last year’s first national bailout, the Mama’s Day Bail Out, freed over 100 people. After that, advocates staged a number of other events timed to holidays such as Father’s Day, Juneteenth, and Pride, bailing out at least 100 people more.

This time, organizers are including an important new element: a toolkit to help communities across the country start their own bailouts. As the collective worked with new groups during its bailouts last year, it realized there was a need for a resource outlining the steps and best practices for those wishing to launch their own. So the group has created a document that includes checklists for getting started, what to do on the day of the bailout, and how to follow up after the event itself is over. It also includes a wealth of information on what bail is and how it works, as well as guiding principles for participating in the national coalition.

“The toolkit is intended as an invite for folks to join us on Mother’s Day and beyond,” said Scott Roberts, senior campaign manager at Color of Change, which is part of the national coalition. “We want everyone who feels inspired by this to go out there and do it.”

He hopes the toolkit will also reinforce the values that undergird the bailout movement. “We wanted to make sure that as people replicated [bailouts], they were replicating the entire thing,” Roberts said. “The message was about ending money bail, not this being a charity or direct service operation.”

While some bail reform measures have only eliminated bail for non-violent, low-level offenses, the coalition wants to take a broader approach. It is careful not to discriminate between the different people who need to be bailed out — those charged with violent versus nonviolent crimes, straight versus queer people, old versus young, or those struggling with addiction or other issues. “We wanted to make sure people were embracing our values of inclusivity,” Roberts said.

The toolkit also makes clear that a bailout alone is not enough — it needs to be accompanied by other services and assistance. “Most of the time you can’t just bail someone out and say, ‘Hey good luck with your life,’ and expect that they are going to have a lot of very different outcomes,” Roberts said. Many people need immediate help with housing, food, and healthcare, as well as help returning for court dates, such as transportation or childcare.

“We would be doing a disservice to folks to minimize the amount of work and time and energy that went into having these bailouts, because it was no small feat,” Hall said. It also reflects the fact that “there is no one right way” to do one, she said.

The actual freeing of jailed people for the Black Love Bail Out began with nine people released in Philadelphia last month. Advocates in the city plan to keep bailing people out through March so long as they can raise enough money.

The February bailout came just after the Philadelphia City Council unanimously voted in favor of a resolution calling on the district attorney, state legislature, and courts to end the use of cash bail, and the subsequent announcement from District Attorney Larry Krasner that his office would stop seeking cash bail for 25 low-level misdemeanor offenses.

Reuben Jones of the Philadelphia Community Bail Fund credits his city’s bailouts with helping propel that action. “When we first started talking about cash bail four years ago, we didn’t have political support,” he said. But some of the city’s elected officials actually donated to the bailout last year. “Bailouts were a way to put pressure on the city to show that people don’t have to be confined pretrial to get to court [and] that holding people hostage with bail is inhumane.”

So the recent changes “were huge for us,” Jones said. But he and other advocates also plan to keep pushing forward. “For us, that’s not the end goal,” he said. “We want to … eliminate cash bail.”

“The city was willing to stick its neck out for lower-level offenses, which is a safe choice,” he added. But “we don’t make a distinction between violence versus nonviolence. We want it to be about the practice, not just for low-level misdemeanors.”

Next up will be San Antonio, Texas, where advocates are planning to bail out 20 people later this month. With an upcoming race for district attorney in Bexar County, which includes San Antonio, advocates hope the bailout will help push the new DA to prioritize bail reform. Advocates in Dothan, Alabama will also get in on the action, with plans to bail out around 10 people, as will those in Memphis, Tennessee.

This year’s Mother’s Day bailout promises to be huge. More than 40 organizations have already expressed interest in doing their own bailouts or solidarity actions, roughly double last year’s count. Last week, the coalition held its first webinar with about 35 people to launch the toolkit and it will hold more specific ones in the lead-up to May 13.

Apart from helping individuals, the bailouts aim to further the larger goal of eliminating cash bail by giving advocates more expertise in how the system works. Mary Hooks, co-director of Southerners On New Ground, a group focused on LGBT organizing the South, helped originate the Mama’s Day Bail Out last year. After their bailouts, she and her organization were able to use what they learned firsthand to advocate for bail reform in Atlanta. On February 6, Atlanta’s mayor signed an ordinance eliminating cash ba
for some low-level offenders in municipal court, and later that month the Georgia Senate unanimously passed a proposal giving judges more freedom to avoid cash bail for nonviolent offenses.

The upcoming Mother’s Day bailout is meant to accomplish similar goals. It “will help put this on the map for [participants],” Hall said. “Once people are interacting with the bail system in different ways — paying bail and talking to folks that are in jail because they don’t have the money to pay bail — folks are moved to do something.”

Hall hopes that will lead to bigger changes, and ultimately an end to cash bail. The bailouts are “harm reduction,” she said. “They’re not the solution.”

Kim Foxx Just Released Six Years of Data — Most Prosecutors’ Offices Remain Black Boxes

Cook County SA Kim Foxx announcing last year’s data report.

Kim Foxx Just Released Six Years of Data — Most Prosecutors’ Offices Remain Black Boxes

On Friday, in what her office called, “the first [release] of its kind in the country,” Cook County State’s Attorney Kim Foxx made public six years of felony criminal case data. The data was released in four Excel tables delineated by stage — intake, initiation, disposition, and sentencing — and includes more than 45 million data points in total. Unique identifiers are used for cases, defendants, and charges, so any member of the public can trace them through each stage. This wealth of information comes on the heels of Foxx’s 2017 Data Report, released in mid-February, which briefly summarized some of last year’s felony prosecution statistics. “Our work must be grounded in data and evidence,” said Foxx, “and the public should have access to that information.”

The sheer amount of information included in this release means it will take more than a few days to decipher any major conclusions. But the mere fact that it is publicly accessible is in itself newsworthy. The Cook County state’s attorney’s office is enormously powerful. As the second largest prosecutor’s office in the country, it handles almost half a million cases a year on a $150 million budget. Every day, their decisions shape the futures of thousands of people. Yet, until now, we’ve had little information about what those decisions look like in aggregate.

Head prosecutors are democratically elected — and yet they rarely release even the most superficial data about what happens in their office, making it difficult for voters to hold them to account. “Data release from prosecutors is virtually non-existent,” says Tracy Siska, executive director of the Chicago Justice Project. In fact, in many jurisdictions, it’s not even clear how much data the staff maintains internally. If someone wants to know just how many people in their county were prosecuted for marijuana possession last year, what the average bail request is in a misdemeanor theft case, whether Black defendants and white defendants are offered the same bail amount for the same crimes, or even just the percentage of defendants that plead guilty in their jurisdiction, they are going to have a monumentally difficult time finding that information.

In some counties, prosecutors release an annual report, which often include a few statistics about their work. But those tend to be cursory and self-serving — an opportunity to brag about an astronomically high conviction rate, for example, or tout their cost-cutting skills. “Rarely is there something truly substantive available from a district attorney’s office,” emphasizes Fordham University Professor John Pfaff.

There are a few outliers besides Foxx — in California’s Santa Clara County, for example, District Attorney Jeff Rosen releases an annual Race and Prosecution report. And, in 2014, Vera Institute of Justice worked withDistrict Attorney Cy Vance to analyze racial disparities in Manhattan’s 2010–2011 criminal case outcomes. But Vance has not provided any update to his study, which is now six years old. And, unlike Foxx, neither Rosen nor Vance has released any raw data.

This lack of information makes it virtually impossible to know if prosecutors who claim to be reformers are keeping promises. Many elected prosecutors are facing a more demanding electorate, voters who reject the tough-on-crime affectations of traditional law-and-order officials. In cities like Philadelphia, Houston, St. Louis, Orlando, and even Chicago, voters have elected district attorneys who promise to take a less punitive approach to prosecution, and who are willing to confront the underlying struggles that many defendants experience, such as addiction, homelessness, and mental illness. And in jurisdictions around the country, organizers are struggling to figure out whether these reformers are staying true to their word — without useful data, they are reduced to cobbling together data points from other agencies and extrapolating from anecdotes. District attorneys in Manhattan and Brooklyn have repeatedly promised to stop prosecuting certain crimes such as marijuana possession and turnstile jumping, for example. “But the challenge is that when prosecutors say they aren’t prosecuting marijuana anymore, there is almost no way for us to know if that’s true.” says Nick Encalada-Malinowski, civil rights campaign director for VOCAL-NY.

Sometimes, organizers have to invest their own resources in accountability. Just last week, advocates in New York officially launched Court Watch NYC, a collaborative project created by VOCAL-NY, the Brooklyn Community Bail Fund, and 5 Boro Defenders. The project trains people to observe arraignments and bail hearings in New York in order to hold district attorneys accountable. “One goal is to have our own data, to be in control of our own data to counter false narratives,” says Encalada-Malinowski, adding that they want to “demystify the process and get people used to thinking about civic engagement with the DA’s office.” Court Watch NYC is reminiscent of programs in other cities, including Chicago. It’s a stop-gap solution to a major public failure — community groups and individuals combining their limited resources to make accountability possible. “Our hope is to get the data between the margins,” said Alyssa Aguilera, co-executive director of VOCAL-NY. “We want to understand how prosecutors behave and not just the final outcomes of the case.”

For prosecutors that profess to care about accountability, providing public data themselves should be non-negotiable. Foxx undoubtedly deserves recognition, but in an ideal world, we’d have access to much more information than she has offered so far. Her office handles 400,000 misdemeanors a year, none of which are included in this data. And even among the cases included there are still important data points missing — there’s no information about bail and pre-trial release, nor is there even anonymized data about the prosecutors handling each case. “The bottom line is that prosecutors should always release all of the data they have,” says Siska. Otherwise, “it’s always missing something. It’s always telling their version of what’s going on.”

Complex, robust, disaggregated data that is anonymous but individualized, and allows us to see exactly how the office functions day after day, is a minimum. “For too long, the work of the criminal justice system has been largely a mystery,” Foxx stated Friday. “That lack of openness undermines the legitimacy of the criminal justice system.” She’s right, and as voters and residents, we must demand information about how our prosecutors operate. Kim Foxx has offered a starting point, and other prosecutors should surpass it. Without this data, we’re forced to address some of the criminal justice system’s most pernicious conundrums — racial injustice, mass incarceration, criminalization of the poor — without a roadmap.

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Movement to Reform New York’s Discovery Statute Faces A Familiar Foe: Prosecutors

NY Governor Andrew Cuomo (L) shakes hands with Manhattan D.A. Cy Vance
Mario Tama / Getty

Movement to Reform New York’s Discovery Statute Faces A Familiar Foe: Prosecutors

By the time Steven Odiase learned of the evidence that would set him free, he’d already spent six years in prison for murder. The Bronx district attorney pushed for Odiase’s conviction in the fatal shooting of 15-year-old Juan Jerez in 2009, based on the testimony of a single witness who put him at the scene. Then, in March of last year, his attorneys made a startling a discovery: a police report containing the statement of a previously unknown witness, whose physical description of the shooter did not resemble Odiase.

Years earlier, Bronx Assistant District Attorney Adam Oustatcher had received that very same police report. But before sharing such exculpatory material with the defense, as is required by law under Brady v Maryland, he first redacted the information unfavorable to his case. When Odiase’s attorneys did receive a copy of the report, there was no sign that detectives had ever spoken to the second witness. That change was made deliberately, by Oustatcher’s own admission, as part of the office’s policy of withholding information that could harm witnesses. Altering the report, he said, was “normal practice.”

Oustatcher, who now works for a Long-Island based law firm, will likely face no consequences for his actions. Prosecutors are rarely disciplined for even egregious misconduct; a 2016 Innocence Project report found that in 660 cases in which misconduct was identified, only one prosecutor was sanctioned.

In the months since the redaction in the Odiase case was made public, a growing reform movement has seized on the methods by which prosecutors provide crucial evidence to the defense. Known as criminal discovery, the process has garnered particular scrutiny in New York, where a so-called “blindfold law” allows prosecutors to withhold vast amounts of information — including police reports, witness statements, and grand jury testimony — until just before a trial which makes it difficult, if not impossible, for defense attorneys to properly investigate and prepare their case. A failure to present an adequate defense violates a defendant’s Sixth Amendment rights — “T]he right to counsel is the right to the effective assistance of counsel.”

But because of the “Blindfold law” and the fact that by one estimate only about 5 percent of cases ever go to trial, defendants frequently plead guilty without fully knowing the case against them. In the rare instances that defendants do go to trial, it’s not uncommon for witness statements to be provided to attorneys only hours beforehand. And then there are cases like Odiase’s, where prosecutors deliberately hide exculpatory evidence from defense attorneys — around 38 percent of the state’s 234 exonerations are caused by such Brady violations, according to the National Registry of Exonerations.

“New York’s broken discovery statute has empowered prosecutors for decades with an enormous advantage over the defense, undermining fairness and due process,” Tina Luongo, Attorney-In-Charge of the Criminal Defense Practice at the Legal Aid Society, told The Appeal. Similarly restrictive discovery laws can only be found in Wyoming, South Carolina, and Louisiana, a state known for having the highest incarceration rate in the world and rampant prosecutorial misconduct. Meanwhile, at least 35 other states (including New Jersey) have broad and early discovery, meaning that prosecutors turn over critical information like police reports and witness statements early in a case, without requiring defendants to file motions with the court to obtain them.

Despite the Manhattan district attorney’s office’s claim that “there is no empirical evidence that open-file discovery leads to more efficiency,” a host of studies suggest just the opposite. In a 2016 study published in the Washington and Lee Law Review, researchers compared closed file discovery in Virginia with open discovery in North Carolina, and arrived at a “data-driven endorsement of the idea that open-file discovery could facilitate more informed and more efficient case dispositions.” That same year, a report from the New York Mayor’s Office of Criminal Justice concluded that “standardized, broader and earlier exchange of discovery materials can promote quicker case resolutions.”

Defense attorneys have been arguing for broader and more open discovery policies for years, but it’s only recently that the state legislature has signaled a willingness to bring New York in line with the national mainstream. A bill introduced last January in the state assembly would add New York to the growing list of open file states, and it has the support of the New York State Bar Association, the Legal Aid Society, and the Innocence Project. Companion legislation is currently in committee in the state senate. Governor Cuomo voiced his support for “expanding the discovery process” last month, as part of a five-pronged legislative package aimed, in theory at least, at improving access to the justice system.

Of course, not everyone is thrilled that the logjam in Albany seems ready to break. Citing concerns over the safety of civilian witnesses, the District Attorneys Association of New York (DAASNY) has long opposed broader discovery policies and, according to Luong, is now actively lobbying against comprehensive reform. DA Associations are extremely effective in influencing public policy and unsurprisingly DAASNY’s opposition may be working, as evidenced by a slew of loopholes in Cuomo’s proposal, including the creation of an expansive “right of redaction” of witness information by prosecutors.

The Legal Aid Society said such a “right of redaction” will give prosecutors “blanket authority” to blackout the identifying information of witnesses. Defense attorneys cannot adequately prepare and investigate their cases without identifying and interviewing such witnesses. As well, under the Cuomo proposal, prosecutors could justify redactions based on a list of over one dozen qualifying considerations including a defendant’s reputation, alleged gang affiliation and perceived “public safety threat.” Perhaps most damagingly, the Cuomo proposal greatly expands the discovery that must be turned over by the defense, meaning that, according to Legal Aid, “the defense would have to turn over its witnesses’ statements before the prosecution has turned over its witnesses’ statements — and long before the prosecution is required to turn over the Grand Jury minutes of its witnesses.”

DAASNY President Scott McNamara told The Appeal that he was pleased with the “right of redaction” language, and was adamant that the differences between upstate and downstate courthouses make open discovery a nonstarter. Asked how the 35 other states that have broader and more open discovery manage to get around this problem, he responded, “New York is one of the safest states in the country, so why do we always feel that what we’re doing is wrong and we have to modify it to what someone else is doing?”

That sentiment was echoed by the city’s district attorneys during a recent City Council hearing on discovery reform. With the exception of the Brooklyn DA’s Office, which independently adopted open and early discovery in the 90s, representatives from each of the borough prosecutors’ offices cited witness safety concerns in explaining their reluctance to support the proposed discovery reforms. Robert Master, an assistant district attorney in Queens, was perhaps the most forceful opponent of the reforms, warning of “a unilateral renegotiation of the ‘See Something, Say Something’ social contract” if open discovery is passed at the state level. At the same time, each of the DA’s offices representatives insisted that their offices have taken steps in recent years to streamline the pre-trial information sharing process.

Excerpt from the Manhattan D.A.’s “expedited discovery” policy.

But defense attorneys say that minor policy shifts — like the Manhattan DA’s announcement of “expedited discovery” last year, which applies only to police witnesses — mean little in the absence of comprehensive changes to the state statute. They note that the promise of reform rings particularly hollow coming from Cy Vance’s office, which has earned a reputation for not only redacting the names of witnesses, but complainants as well.

“It’s a trial by ambush strategy, because the majority of the evidence that you’re given does not make sense without the name of the complainant or any of the witnesses,” says Rebecca Kavanagh, an attorney with the Legal Aid Society. As for the prosecutors’ fear about witness protection, Kavanagh sees their concern as “an absolute smoke screen” deployed to maintain a strategic advantage over the defense.

Yet despite the best efforts of prosecutors, many in New York’s public defense community are still confident that the state’s “blindfold law” will soon be lifted. “If former Texas Governor and current Trump administration Energy Secretary Rick Perry can enact one of the most comprehensive discovery reforms in the country,” notes Legal Aid’s Luong, “surely New York can.”

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