The Failed Attempt at Bail Reform

In spite of the valuable services that companies like Big Fish provide to people in need—not to mention the judicial system—the bail bond industry has been under attack. This is no grassroots uprising; it’s primarily driven by a single organization: The Arnold Foundation. This not-for-profit organization was founded by John Arnold, one of the executives responsible for the 2001 Enron scandal. Now Arnold is up to other mischiefs: his foundation wants to restrict the ability of bail bond agents to continue playing a crucial role in the legal process.

The Arnold Foundation claims that the bail bond industry victimizes the poor. The truth is that a bondsman provides cash reserves to people who don’t have money (and therefore can’t get out of jail) deal with their legal situation and work toward once again becoming productive citizens as they await trial. These low-income suspects are frequently allowed to pay the bond interest back over time, which softens the financial blows to their lives.

How has the Arnold Foundation proposed to deal with these individuals? Conveniently, they have a computer program that determines who stays in jail and who goes free. It was developed with no apparent governmental oversight, so the system’s results were questionable from the beginning. The software architecture is built on the underlying assumption that inmates should go free until proven otherwise. We’ll talk about some real-world consequences of this approach later in the article. For the moment, it’s important to note that the financial commitment that goes with paying bail money is, in itself, a deterrent to committing further crimes. For many violent offenders, this deterrent has been removed in states that have adopted the Arnold Foundation model.

Arnold Foundation lobbyists have been hard at work convincing state legislators to abandon current bail models and adopt their program. So far, they have been successful in New Jersey, New York, and California. Meanwhile, Denis Calabrese, past foundation director (and a convicted felon), is accused of stealing millions of dollars in kickbacks from the organization.

The Shady Dealings at the Arnold Foundation

This certainly begs further examination of the foundation’s supposedly altruistic motivations for creating the program. Arnold is suing Calabrese for “exploiting the foundation’s trust,” saying they knew nothing of his actions until they received a government subpoena related to a tax fraud investigation into Calabrese. (He later pled guilty to tax evasion.)

But okay: how can you not know that your director has channeled over $2 million to personal, offshore accounts? Nonprofit foundations are required to be meticulous in, not only their hiring practices, but also in their bookkeeping records. Two million dollars is a lot of money for such an organization to misplace without knowing it.

The plot thickens. Calabrese is also being investigated for undisclosed financial connections with two foundation contractors. Pathfinder Communications provided over $5.6 million in services to the foundation, and Raconteur Media Company provided over a quarter of a million dollars in services. Calabrese allegedly siphoned personal payments from these transactions.

They didn’t think this through

Hiring an ex-convict, ex-Enron executive isn’t exactly the kind of behavior that engenders trust in a nonprofit organization. Not noticing that this person is siphoning money for himself is almost unbelievable. But the real concern here is the stark ineffectiveness of the Arnold program, its poorly contrived algorithm, and the harm it’s already bringing to states where it’s been adopted.

The foundation’s risk assessment algorithm was pitched as a fundamental shift in the functioning of the criminal justice system. The organization’s messaging demonizes bail bond agents as predators taking advantage of a system that unjustly holds poor defendants in jail.

But as early-adopter states can attest, the algorithm is massively flawed. Defendants released through the program have been re-arrested for committing new crimes, so the algorithm doesn’t do a great job of selecting the right people for freedom. Many of those who don’t commit new crimes just don’t show up for their court dates. Why should they? They have no financial stake in the matter—an important motivator that bail bonds bring to the equation. On the other side of the coin, pre-trial detentions of defendants who are not given the option of bail have increased in some jurisdictions, which is the opposite of what the program was designed to do.

Taking a U-turn on bail reform

As failures mount, Kansas jurisdictions are debating the use of the Arnold algorithm. Missouri, Delaware, and New Hampshire are in various stages of re-considering adoption of the plan after giving it serious consideration. Some jurisdictions that have tried it are now considering moving away from it.

As common sense begins to gains the upper hand in some states and counties, many are struggling with appalling consequences of the Arnold system.

As prosecutors, judges, and law enforcement personnel in these jurisdictions begin to speak out about the problems created by the Arnold risk assessment system, how is the foundation responding? They recently acknowledged the failure of their system and have announced they will soon change their business structure to a for-profit enterprise called Arnold Ventures. This new corporation is supposedly still dedicated to bail reform, although any proposed methods are unclear.

Repercussions

In 2019, California moved away from cash bail with the passing of Senate Bill 10. The bill also greatly expanded judges’ power of detention. New Jersey made the move in 2017, and it has become a financial disaster requiring the court system to call for tax increases to cover costs. So the courts are better able to support themselves in a system that keeps money when bad guys don’t show up for trial—another societal benefit. Still, the damage has been done in several states, and reforms will have to be rolled back before anything improves.

With so much anti-bail-bond inertia already in place as a result of the Arnold Foundation’s misguided influence over government, policy the effects will continue to be felt for some time to come, even in areas that roll back reforms. Meanwhile, the foundation’s director continues to benefit from money stolen directly from the organization’s coffers.

Results of Bail Reform

The argument in favor of bail reform is that the current bail system discriminates against the poor. First of all, we would argue that a lack of bail bond agents would actually discriminate against the poor because only the rich would be able to pay their way out of jail. The problem is not in the bail bond approach, it lies in the fact that no one ever really knows whether a defendant will show up for trial. Algorithms can’t predict it nearly as well as human judges, and the only proven deterrent to flight is for the defendant to have money on the line.

The real question here is whether the Arnold system is better than the status quo at, both, getting defendants to trial and protecting the public by not releasing the wrong people. And in the real world, now that it’s being applied to real judiciaries and real lives, the answer is a resounding “no.” New York state’s bail reform became effective January 1, 2020, and it’s creating a situation in which defendants of such crimes as vehicular homicide are being released on their own recognizance.

Other crimes for which New York has granted exemption from bail include criminally negligent homicide and second-degree manslaughter. It’s difficult to understand how this kind of “reform” is offering any assurance that people accused of taking another’s life will show up for trial or refrain from committing new crimes in the meantime. And the facts so far prove that bail reform is failing to assure public safety.

Prime Examples of Bail Reform Failures

New York’s 2019 string of eight anti-Semitic attacks shook the nation with horror, but reformed bail laws allowed most of the alleged attackers to be released on their own recognizance. People capable of such random acts of violence should be managed more responsibly by the legal system, and bail bonds are a way of helping to assure their compliance. But let’s take these one at a time: one of the assailants was Tiffany Harris.

Tiffany Harris

Harris is accused of punching and cursing at three young, Orthodox Jewish women in Brooklyn’s Crown Heights neighborhood. She was arraigned on 21 charges, and it was discovered that she had an open, 2018 harassment and assault case on the docket, as well as recent charges of felony criminal mischief, for which she had repeatedly missed court hearings. After the Crown Heights assault, Harris was once again released without bail.

In an unprovoked attack the day after her release, Harris punched a 35-year-old woman in Brooklyn who was out for a walk.

Ayana Logan

Ayana Logan, another alleged assailant in the string of attacks, is accused of striking a Brooklyn woman on the head while shouting, “You f***ing Jew! Your end is coming.” The victim was leaving Dunkin’ Donuts with her small son when the assault took place.

Steven Jorge

Only one other suspect was apprehended: Steven Jorge, a 28-year-old man alleged to have beaten a 65-year-old man wearing a yarmulke. Unlike the other suspects, Jorge was held without bail pending a psychiatric evaluation.

But how is it that the other suspects—also potentially dangerous—were put back on the streets? That’s easily answered: when such complex matters as these are simplified into the type of program espoused by the Arnold Foundation, oversimplified rules are followed to determine who is held and who is set free. So what criteria had New York put in place with the new bail reform?

Tiffany Harris slipped through because the new legislation calls for courts to free suspects accused of assaults that don’t cause physical injury and are not sexual in nature. Alleged perpetrators of hate crimes that fall into this category, like Harris, are also set free. This legal standard allowed all but one of the alleged anti-Semitic walk free after arraignment.

Former state legislator and Americans Against Anti-Semitism Founder Dov Hikind responded to the legislation by saying, “You have to beat the hell out of somebody — or murder them—for there to be any consequences. Otherwise, you are set free.”

Coyote Santos

The case of Coyote Santos offers further proof of the failure of bail reform in New York. Let’s start at the top of his rap sheet …

In 2016, Santos ran multiple red lights in Manhattan’s Washington Heights neighborhood, nearly hitting several pedestrians and one police officer who dove out of the way of the suspect’s vehicle.

In 2018 Santos and two friends were driving recklessly in Times Square. A police officer approached them on foot and ordered the vehicle to pull over. The driver did not comply and instead accelerated away, striking the police officer in the process. Police arrested Santos in his apartment four days later as he tried to flee through a window.

But this repeat offender was just getting started. In August of 2019 agents from the Drug Enforcement Agency tried to arrest Santos during a sting in which he attempted to sell two kilograms of cocaine (which turned out to be fake) to an undercover agent. As agents closed in for the arrest, Santos escaped by ramming his vehicle into a patrol car and nearly running down a DEA agent who tried to prevent his flight.

Santos was tracked to a Bronx nightclub two days later. He was arrested with three pounds of marijuana in his possession.

Fast forward to November of 2019: Santos narrowly missed running down several pedestrians in his car while fleeing DEA pursuit. Again, he was arrested. His attorney argued that Santos had committed no acts of physical violence and should therefore be scheduled for release in accordance with bail reform guidelines.

The judge ordered that Santos be held on a $100,000 bond, knowing that bail bond reform legislation would go into effect on January 1, 2020, and Santos would once again be released.

Definitely not buying it

Many law enforcement professionals and prosecutors are strenuously protesting the new laws. In New York’s Orange County, District Attorney Chris Borek denounced the state’s new bail reform legislation, which allows narcotics offenders to be released without bond.

Bolek said, “We’re not allowed to ask for any amount of bail.” So drug dealers, arguably some of the more dangerous people in civilized society, are now routinely released back onto the streets after arraignment. Bolek is convinced the legislation will be harmful, creating a clear risk to public safety, and he is not alone. Many New York law enforcement professionals and elected officials have been fighting the legislation since before its January 1, 2020, passage, and they will continue to do so.

Mass Release of Inmates Happened on January 1st 2020

As the Arnold Foundation furtively scales back its bail reform hype, the flawed system is already in place, and the threat to public safety continues to grow in states like New York. Support organizations known for championing the release of violent offenders are amplifying their efforts in the relaxed environment created by the new law. New York’s Legal Aid Society—the same organization that’s defending Randy Santos (the man accused of beating four homeless men to death in Chinatown) is leveraging the law to secure the release of other inmates for whom bail reform has changed the rules.

In late 2019, Legal Aid Society Attorney Marie Ndiaye characterized the old, bail-based system as “arbitrary and cruel” for holding pre-trial suspects. Ndiaye entirely overlooked the cruelty being unleashed on society with the release of violent criminals and continues to maintain that these people can be trusted to appear for trial without committing further offenses.

The facts disagree. With the January 1 release of suspects accused of around 400 categories of charges, some of these violent offenders are returning to the streets to wreak further havoc. Suspects of crimes ranging from negligent homicide to drug and gang activity, to aggravated assault have been released with little or no cash bail. When the law went into effect, it also applied retroactively to suspects already in custody, further amplifying the risk to New York citizens.

Here’s the bottom line: nobody wants to see minor offenders locked in jail just because they’re broke, but the pre-reform bail system provides judges with the greatest flexibility to make good decisions about who should and should not be released. The bail bond model has worked well for decades because, while there’s no solution that’s perfectly fair to suspects and the public, bail bond financing models do create opportunities for poor people to constructively manage their lives as they await trial. These kinds of decisions cannot be intelligently made by the over-simplistic, over permissive Arnold system, and the states who have adopted bail reform are starting to feel the unpleasant effects of their decision.