By Kevin Deutsch
A new program meant to help defendants return home quickly after an arrest is drawing criticism from public defense groups in the Bronx, who say authorities aren’t complying with a city law governing the program.
Local Law 125, passed by the City Council in 2017, requires the Department of Correction to provide all bail-eligible inmates with access to “bail facilitators” within 48 hours of entering departmental custody. In a sprawling corrections system critics say is rife with administrative hurdles, facilitators are supposed to help newly arrested defendants learn how, where, and when they or their loved ones can post bail.
DOC is also legally required to provide eligible inmates with written information about the process, and help them access their own cash, debit, or credit cards within 24 hours.
Under city law, the facilitator program was supposed to be in place by early 2018. But DOC says the program did not go live until January of this year.
And while DOC insists it is now complying with the mandate, attorneys at the Legal Aid Society and Bronx Freedom Fund—along with several private defense lawyers and recently arrested Bronx residents—tell a different story.
The attorneys say they’ve never met or interacted with a DOC bail facilitator—nor obtained any names or contact info for the workers—despite making numerous attempts to do so. In one recent case, a Legal Aid client waited three-and-a-half days to speak with a bail facilitator, the organization says, securing a meeting only after his attorneys sent multiple requests to a team of DOC lawyers.
Elena Weissmann, director of the Bronx Freedom Fund, a non-profit organization that aims to disrupt the money bail system, said the obstacles defendants must overcome to post bail—even with the aide of facilitators—are daunting.
In the recent Legal Aid case, for example, a facilitator helped the inmate access the city’s online bail payment system, as well as his debit card, so that he could potentially secure his own release.
But the defendant could not remember the last four digits of his social security number—a piece of information DOC said it requires for all online bail payments as a way to prevent identify fraud, as well as to keep people who want to harm particular defendants from personally bailing them out.
In the eyes of critics, however, the social security rule is still another unnecessary barrier in a process that keeps most defendants behind bars long after they should be released—and leaves families without breadwinners for extended periods of time.
“Because of how bureaucratic and cumbersome this process is, it’s practically impossible for our clients to access their rights, if DOC makes them available at all,” Weissmann said of the bail process and facilitator program.
“It’s important to remember we are talking about people who are presumed innocent and have no reason to be locked up in the first place.”
Elizabeth Bender, staff attorney with the Legal Aid Society’s Decarceration Project, said DOC is also failing to comply with the portion of the law requiring it provide inmates with written information about how to post bail, and an opportunity to access their personal money and accounts within 24 hours.
“I think we’ve seen in various areas that DOC tends to create what looks like a functioning system to deal with either settlements or local laws that govern how they operate,” Bender said. “And they’ll create a system, but either the system is not functioning properly and/or, even if it were, it would fall short” of what the law requires.
“I think here we’re seeing both of those things happening.”
Of the facilitator program DOC says is currently in place, Bender said: “We don’t have any details to make sure that system is working, and they seem to be reluctant to provide them.”
DOC officials insist facilitators are currently operating in all city courts and correction facilities, ready and able to help bail-eligible inmates.
The job is currently being filled by corrections offers—city workers who usually patrol Rikers Island and other detention facilities, according to DOC.
The agency also acknowledges there is room for improvement in the program’s application.
“We are committed to making the bail payment process as easy as possible,” DOC spokesperson Jason Kersten told Bronx Justice News. “There are officers at every courthouse who are trained and instruct people on how to pay bail. We also have instructional videos in multiple languages, pamphlets, and an online bail payment system, including self-pay bail kiosks at every courthouse. We will continue to look for ways to improve on what we have built.”
At least one specially trained correction officer—designated as a DOC bail facilitator—is present in all courts during active hours, according to DOC, as well as in all department facility intake areas on every tour.
The Deputy Warden of programs, or his or her designee, also serves as a bail facilitator, the department said.
Among the responsibilities of the officers, according to DOC: providing bail eligible defendants with a printout including information about each of their active cases and bail conditions; informing them about bail payment options and locations that accept bail; giving them access to personal property to help facilitate bail payment; taking steps to help them reach bail bond companies; and explaining the bond industry’s fee system.
The department also said it has an informational bail video which plays on a loop in English and Spanish in courts and facility intake areas, and has informational bail posters and pamphlets available in those locations.
As for access, DOC officials say an incarcerated person can receive help from a bail facilitator in any city court by asking DOC personnel to locate the court bail facilitator on duty, if they are not already in the area.
But Bender and Weissmann said that’s not enough to meet the law’s requirements.
“They said that any inmate at any time could ask to speak to a bail facilitator, but what they did not say is how they alert people that they need to ask,” said Bender. “There’s nothing in the law that says it’s a request based system. It says they have to provide it. And unless they’re telling everyone unequivocally and ASAP that they need to ask for this service, how are people supposed to know?”
As for the informational video, Bender said that, legally, the “function of the bail facilitator can never be met with any kind of video, no matter what it [the video] says.”
The City Council, too, has been critical of the bail facilitator system, saying members received scant information from DOC when they submitted questions about the program earlier this year.
The Council’s Oversight and Investigations Unit issued a scathing report on bail-related problems in March, finding that, nearly two years after the Council passed a package of reforms in response to “the inefficient, antiquated, and often dehumanizing nature of the bail payment process in New York City,” DOC was still “substantially out of compliance” with many parts of the law, including the section mandating bail facilitators.
“DOC purports to have staff members acting as Bail Facilitators, but advocates report that neither they nor their clients have ever interacted with someone in that role,” the report said. “Local Law 125 of 2017 also requires DOC to provide an inmate eligible for bail with written information about how to post bail and to allow the inmate the opportunity to access personal property to do so, all within 24 hours of taking the inmate into custody. Again, while DOC claims to do this, OIU heard contrary information from advocates. In sum, DOC’s policies and practices have created a system in which even an individual who is able to pay bail faces obstacles and challenges at every stage in order to do so.“
Three months later, DOC says it is working to increase awareness of facilitators, while also making related improvements.
To improve visibility, the department says it is designing pins that identify on-duty bail facilitators, as well as posters that tell detainees to look for those pins if they need help with bail.
The Correction Officers’ Benevolent Association, whose members DOC says are serving as facilitators, did not respond to questions about the program.
Critics say they will keep pushing DOC to make changes, until they consider it to be in compliance with city law.
One way to do that, Bender said, is for the department to be more transparent.
“An easy solution to this impasse, and underutilization of these facilitators, is to give their names and contact info and schedules to the public defender offices and the private bar, and let us give that information to our clients so that we don’t have people sitting in jail for no reason,” said Bender, who, along with Weissmann, has submitted a Freedom of Information Law filing to DOC seeking that information.
“We would very much like to credit their statement that they want to make sure this goes as smoothly as possible for people, but we need a lot more information to help make sure that’s happening.”