Bail is Busted: How Jail Really Works

Thousands of New Yorkers are stuck behind bars because they're too broke to get out

From early on, Occupiers have organized jail support—teams of people ready with food, cigarettes, MetroCards, and emotional care who wait outside the precincts or sit in arraignment court.

"Being in jail is a form of trauma," says Moira Meltzer-Cohen, a City University of New York law student who works with Occupy Wall Street's Activist Legal Working Group. "You're stripped of your freedom, and you're often not treated very nicely. It's important for the Occupiers to recognize that their experience probably doesn't begin to compare to what more vulnerable people experience, but it's still traumatic, and it's hard to put a value on having friendly faces when you get out."

People arrested in the course of Occupy actions also have even more tangible advantages. For one, they have legal representation from the National Lawyers Guild, rather than having to rely on overworked public defenders. For another, like the members of many social-protest movements before them, they bail each other out.

Unlike her cell mates, Occupier Lauren DiGioia, arrested for dancing on the sidewalk, had access to bail.
C.S. Muncy
Unlike her cell mates, Occupier Lauren DiGioia, arrested for dancing on the sidewalk, had access to bail.
DiGioia says her time in jail showed her how different the criminal-justice system is for her less fortunate cell mates.
C.S. Muncy
DiGioia says her time in jail showed her how different the criminal-justice system is for her less fortunate cell mates.

Occupy Wall Street's decision-making body, the New York General Assembly, has allocated thousands of dollars toward bail and developed a smooth-running system for making sure protesters never have to languish in a cell for want of cash.

Most protesters are let off with a desk-appearance ticket or are released at arraignment on their own recognizance. But in some cases, the judge sets bail, and when that happens, a member of the movement's Accounting Working Group is on hand with cash at the ready.

It's a system that has worked well for the Occupiers, who are then free to fight their cases from a position of freedom.

"I can't tell you how many Occupy protesters I've spoken to who have told me a story about their time in jail, talking with other people who are in there for something stupid like a stop-and-frisk arrest or something, and how much that stays with them," says Matt McCoy, a 26-year-old who has been involved with the movement since its first day. "For a lot of us, that arrest isn't going to wreck our lives, and that's not necessarily true for the other people in there."

That uncomfortable awareness percolated among Occupiers for months, and as the movement began its planning for a range of May Day actions, some of them decided to do something about it. Occupy had already spun off numerous projects targeted at specific problems, including one that addressed banks' criminal responsibility for the foreclosure crisis by taking over foreclosed homes in East New York and installing homeless families in them.

McCoy, Meltzer-Cohen, and half a dozen others saw an opportunity to do something similar for the criminal-justice system, to call attention to the way bail is used to force guilty pleas and to keep people locked up for no other crime than their poverty. It would be a way for Occupiers to reach beyond their movement.

In its early meetings, the group, calling itself Bail Out New York, contemplated an organized effort to post cash bail for as many non-Occupy-affiliated criminal defendants as it could afford to. There were some legal problems with that strategy, though, so now they're contemplating alternatives. Among them is a mass action building on the Bronx Defenders' recent legal victory. 

One of the little-used options for bail allows for someone else to stand as surety for a defendant, putting no money down up front but pledging to pay the full amount if the defendant misses a court date.

"One of the options we're looking at is getting a lot of people into an arraignment court and one by one having them stand up for defendants and say, 'Judge, if you'll set an unsecured bond, I'll stand surety,'" Meltzer-Cohen says. "Either the judges would go with it, which would be new and great, or they'd be on record refusing it, basically saying, 'We'd rather keep this person locked up than let him out on a legally permissible form of bail.'"

Bail Out New York is still working through some obstacles to this plan—finding many people willing to put their bank accounts on the line for $1,000 for a stranger might be more easily said than done—but the group is determined to do something.

"This is one of the most destructive, discriminatory parts of the criminal-justice system," McCoy says. "It ruins individual lives and whole communities. And we're at a moment where there's a real potential for change. We just have to figure out the right places to push."

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