Council Speaker Mark-Viverito and Council members (photo: William Alatriste)

Last year, City Council Speaker Melissa Mark-Viverito’s office began seeking state approval for a public bail fund to keep poor low-level offenders out of jail, with Mark-Viverito citing the costs even a short jail stay can have on both lives and city funds. Now, after almost a year-and-a-half, the convoluted process of establishing the bail fund as a charity and obtaining a state license to run it appears to be nearing an end.

Mark-Viverito touted the program in her first State of the City address as Speaker, in February 2015.

"[I]f you can't afford bail you will spend on average 15 days in jail," said Mark-Viverito in her speech, given Feb. 11 from a public housing facility in East Harlem. "The results are predictable: people lose their jobs, or their housing, and cannot take care of their children while they are in custody. These are people who are accused of minor offenses and are still considered innocent in the eyes of the law. This is not justice."

The city’s recently-passed fiscal year 2017 budget includes $1.4 million for The Liberty Fund, to cover operation and administration. The same amount was included in the previous year’s budget, but not used.

For many criminal justice advocates, Mark-Viverito, and her team, the bail fund is a key program in a larger push for criminal justice reform. It goes hand-in-hand, they say, with a variety of other efforts spurred by either the Council or the de Blasio administration: a commission chaired by former Chief Judge Jonathan Lippman that is looking at closing Rikers Island; reforms to the city’s summons system and reduced penalties for low-level nonviolent offenses (see the Council’s Criminal Justice Reform Act); increased diversionary sentencing; and reductions in the number of arrests for possession of small amounts of marijuana.

“From passing expansive summons reform to creating a citywide bail fund to instituting a Commission to tackle injustice on Rikers Island, the New York City Council is committed to commonsense reforms that will bring more justice and proportionality to our criminal justice system,” Mark-Viverito said in a statement to Gotham Gazette. “Across the nation, cities and states are engaged in a much-needed conversation about how we approach criminal justice as a country. New York City is at the forefront of these debates, and we are unafraid to lead,” she said.

Some criminal justice reformers view bail funds as “band-aids” that don’t actually address what they see as the core problem: charging too many people with jailable offenses. They worry bail funds could actually prevent action on larger reforms.

The city bail fund would establish a set of criteria for whom bail would be covered. State law that allows bail funds - there are already other funds operable but none at the scale of the City Council’s - restricts such funds to paying in misdemeanor cases where bail is less than $2,000. Members of Mark-Viverito’s staff say they expect the Council-aligned fund will be able to cover bail for 1,000 individuals each year and hope to reach as high as 2,000 annually.

State law allows judges to set bail as an incentive for individuals charged with a crime to return for their court dates. But many poor individuals can’t pay and are forced to sit in jail waiting for trial - an outcome that forces the city to spend money for intake costs like transportation, beds, medical exams, and meals.

According to a 2011 report from the Independent Budget Office, almost 40 percent of the city's then-12,000-member jail population was pretrial detainees who couldn't afford bail. The IBO estimated the cost of holding those alleged offenders at $125 million. The city’s jail population has continued a decades-long decline and is around 10,000 now, with about three-quarters of those detainees at Riker’s Island jail complex.

The city has two other bail funds at the moment: The Bronx Freedom Fund and The Brooklyn Community Bail Fund. The organizations see over 95 percent of the people they serve return for all their court dates, a number far higher than for people who actually pay bail on their own.

“The people we bail out have zero financial incentive to return,” said Ezra Ritchin of The Bronx Freedom Fund. “You would imagine if the law was executed correctly people wouldn't be coming back in droves,” Ritchin said, referring to the idea that what brings defendants back to court is the bail they put up. “But that is not the case, we get a 96 percent return and all we’re doing is calling people to remind them of their court dates - sending texts, letters, and calls letting them know where they have to be.”

Despite the success they’ve had with bail funds, Ritchin and his colleagues at both funds don’t totally disagree with the idea that bail funds are short-term, sub-ideal measures. “Band-aids are helpful tools for people who have cuts,” said Ritchin. The lives of the people they serve, he said, “would unravel if they weren't bailed out. It’s good to have a high-level view of policy change, but we can also help people. Hopefully bail funds do set the groundwork for policy change so that bail funds don't have to exist.”

Peter Goldberg, executive director of The Brooklyn Community Bail Fund, said it is his hope that bail funds will act as a “stop-gap” effort while drawing attention to larger necessary reforms. “We shouldn’t be asking for money for bail from people who can’t afford it. We need to increase diversion services.”

As far as the impact the city’s other criminal justice reforms are having, Ritchin and other bail fund representatives say they have not witnessed a major reduction in clients having been arrested for minor offenses like violating open container laws or possession of small amounts of marijuana.

“Last year there were a quarter-million misdemeanor arrests in New York City,” said Goldberg “We are making additional progress in that area, but if we want to reduce the number of people we are incarcerating for short periods of times it will really require taking a look at if that number of arrests is appropriate.”

A member of Mark-Viverito’s team said that ideally people committing minor offenses would not be sent to jail at all, but that change is up to the state.

“New York City is taking aggressive steps to ensure that people who can safely await trial in their communities are able to do so,” said Monica Klein, a spokesperson for Mayor Bill de Blasio, when asked about the city’s bail reform efforts. “By enrolling over 1,000 New Yorkers in our supervised release program to-date, the City has avoided the money bail system for these individuals.”

City officials point to statistics showing that summonses and arrests for low-level offenses are less frequent than they have been in decades and that 2015 saw the lowest number of criminal summonses since 1997.

They also say they as the Criminal Justice Reform Act is implemented they expect jail populations to further decline, given that police officers will be encouraged to issue civil summonses over criminal ones and defendants found guilty of some crimes will be allowed to complete community service rather than pay a fine.

Both Ritchin and Goldberg stressed that they are unable to meet the overwhelming demand for their services and that they welcome the city’s bail fund.

With the need so great, it may be a wonder to some why it has taken so long to get it up and running. Earlier this year, Mark-Viverito told Gotham Gazette that the bail fund as moving through the approval process at a slow pace because of state bureaucracy.

The state only began licensing bail funds in 2012. Before then they were operating in a legal grey area. Ritchin and Goldberg say they understand why the city’s fund has taken so long to get licensed. From their experience the licensing process is protracted, frustrating, and perhaps not completely logical.

Gotham Gazette has periodically checked in on the process involving the speaker’s office and state regulators. Those check-ins showed the name, The Liberty Fund; that it is being overseen by The Doe Fund, a nonprofit dedicated to helping homeless people; and that it was officially recognized as a charity by the Attorney General’s office in March. Since then there has been a bumpy back-and-forth application process with the state’s Department of Financial Services, which licenses charitable bail funds.

DFS representatives have told Gotham Gazette that they waited at least a month for relevant information after requesting it from the applicants. Gotham Gazette was told on Tuesday by a DFS official that the process is likely to last a few more weeks.

The city bail fund will be the first of its size in the state, available to people city-wide.

Ritchin was involved in helping the Brooklyn fund secure its license while writing a guide for other funds to get licensed. He said the process was rocky despite his past experience and that bureaucracy in general would cause some delay, but, “It’s not just that it takes so long but that a lot of the requirements just shouldn’t exist,” Ritchin said.

“Charitable funds face all the requirements of a for-profit business,” Ritchin said, noting that part of the process involves licensing bondsmen and making sure the fund will take absorbetent fees. Charitable funds naturally do not take fees and do not act as bondsmen. Bondsmen require clients put up a fraction of their bail and then promise the court they will cover the full bail should a client fail to make it to court. Charitable bail funds simply pay the bail. If a client doesn’t show the court keeps that money, just as if a client had paid bail themselves and then did not show up.

However, bail funds put a different system in place to help ensure that clients make their court appearances. (New York City is also moving forward with its own reforms to make sure more people know about their court dates when given criminal summonses.)

Goldberg was a corporate attorney out of powerhouse firm Cleary Gottlieb when he began working with the Brooklyn bail fund. “I very much understand why it has taken them awhile,” Goldberg said of the City Council fund. “We had tremendous support forming our fund and yet it took us around two-and-a-half years before we could pay our first bail,” Goldberg explained.

“We cannot charge and never would charge anyone for our services, which you would think obviates the concerns you might have in licensing commercial bail bondsmen,” said Goldberg. “You are dealing with an incredibly vulnerable population in court so it needs to be highly regulated, but if no money is ever going to be charged and no profit secured it is not easy to understand why the process is the same for charity funds as for-profit bondsmen.”

State Senator Gustavo Rivera, a Bronx Democrat, successfully advocated for licensing of bail funds after a judge ordered the Bronx Fund to stop issuing bail because he said it operated in a legal grey area. Rivera told Gotham Gazette earlier this year that he would love to revisit the law and that he has been working with the Department of Financial Services to streamline the process since it became law.

Ritchin said he believes that hitting the City Council goal of paying bail for at least 1,000 clients a year would make a big difference. However, he said “It’s a big problem: 45,000 people are held on bail every year. But [the city fund] may be able to make a big difference in something like reducing the temporary population at Rikers, it could lead to shutting down Rikers.”

Goldberg says he’s spoken to representatives of the Mayor’s Office and the DOE Fund about the bail fund and he welcomes it. “I am happy the city is taking on part of this problem,” said Goldberg, who acknowledged that even with the city fund fully operational there will still be more demand for bail services than all of the funds combined can handle.

The fund should continue to fuel the discussion about criminal justice reform, Goldberg said. “We very much view this as a necessary intervention. Bail funds do important work but I don't view this as the ultimate solution,” he said. “We are quite cognizant of that, and we hope the city will continue to use resources to diminish the number of people entering the system on the front end.”