Since the suicide of Kalief Browder, fixing the system has become all the rage in New York. There’s the speedy trial piece, but there is also the bail piece, as reflected in this New York Times editorial.
Imagine, for a moment, that you are accused of a misdemeanor or even a nonviolent felony in New York. The judge sets a low bail, maybe $500, but even that is too much for you or your family. So you sweat it out in New York City’s hellhole of a jail on Rikers Island, waiting for a trial months, even years away. Plead guilty and the terrors of Rikers are behind you. But now you have a criminal record, which could damage your future.
Ah, to be an editor at the Times, where one is constrained to “imagine” such things. It’s much better to picture it in one’s mind than to be one of the thousands of people who live it every year.
New York Mayor Bill de Blasio’s administration this week announced a promising plan to help some low-level offenders escape this Dickensian trap. The plan would allow supervised release without bail for defendants who are not a danger to the community or at risk of flight. This is an important move in the right direction. But eventually, it will take Gov. Andrew Cuomo and the State Legislature to reform a statewide system that is unfair and increasingly at odds with other judicial systems around the country.
A promising plan, eh? Pretty cool, although somebody ought to whisper in Bill’s ear that bail in New York isn’t supposed to be fixed based on whether a defendant is a danger to the community. Risk of flight is the only basis for bail in New York. Don’t blame me, Bill. That’s the law.
But the New York Times’ editors would have done well to stop at their second sentence:
The judge sets a low bail, maybe $500, but even that is too much for you or your family.
Why? What purpose is served by setting “low bail” in the fertile imagination of a newspaper editor? Was the defendant really a flight risk? If so, then that’s a good reason. But spend a few hours sitting in an arraignment part in any county of New York City and you can quickly see the mechanics of how judges fix bail.
For trivial offenses, and with the understanding that the defendant before the court is presumed innocent, the prosecutor at arraignments reads a paper prepared by someone else and makes a pitch for bail, say $1000, because of some cursory reason that reflects almost nothing about the defendant but fits into a well-worn narrative.
The defense lawyer argues for ROR, release on his own recognizance, but likely knows almost nothing about the defendant, and similarly pitches based on the crime charged and the defendant’s prior criminal history.
The judge shrugs, having no clue whether bail is needed, whether the defendant’s family has the ability to make $5000 or can’t come up with $5, and mumbles some compromise number, moving the defendant back to lock-up and out of his hair. Next case.
The entire discussion of fixing bail is inane. No new law is needed. No new law was ever needed. The law is fine as it is. What isn’t fine is that judges fix bail anyway.
City officials estimate that that there are thousands of inmates at Rikers who could be working and at home with their families while they await trial. Last year, according to estimates by the city’s Department of Correction, 38,000 inmates were detained because they couldn’t pay bail. Of these, nearly 10,000 people could not afford $1,000 in bail, and 3,400 couldn’t come up with $500 or less.
This absurd mess could be cleaned up in a month, that being the period of time during which most defendants will take the bus ride from the Rock to the courthouse to spend their 30 seconds of due process before the court. All that need happen is every judge review every bail fixed for every defendant who comes before him with an eye toward doing their job rather than avoiding the potential embarrassment of a defendant they cut loose committing another crime and getting their puss on the front page of the New York Post.
Then there are the arraignment judges, who fix needless bail in the first place, which is then perpetuated by subsequent judges who pretend that the bail was a deeply thoughtful, deliberate decision that should not be upset in the absence of the Pope’s vouching for the defendant.
Let’s get real here: nobody is running off to Tahiti to avoid a public urination prosecution. Sure, they might forget to show, or try to stay under the radar, but either the cops will get them when they jump the turnstile of, if they manage to live out the rest of their natural lives without ever getting pinched, the public has been served.
But most will return, even if we lose a few. Except you won’t know that because they’re all sitting in Rikers on bail of $1000 or less for crap cases, trivial charges and the crime of living miserable poor lives.
Want to fix the problem? Stop setting bail for people who don’t pose a factually justified risk of flight. Stop setting bail for people who are charged with a petty offense. Stop setting bail for anyone at $1000 or less. And that can be fixed starting today, and will be fully fixed by this time next month.
But for all the New York Times editorials and politicians’ proposals, you won’t do it. Nobody wants to see their face on the front page of the Post as the City’s worst judge for letting the wrong person walk out of AR-1.