Nick Pinto Shows Why Bail Sucks

Even though I twitted about this story a few days ago, the New York Times Sunday Magazine officially comes out on Sunday, so I waited for now to write. Read Nick Pinto’s cover story called The Bail Trap.  We’re in must read territory for anyone who thinks they have a clue how it happens and what it means to be that guy standing in front of a judge, who is about to fix bail.

What Pinto manages to do is capture the stench of arraignments.  The smell of excrement in lockup.  The sight of a defendant through wire mesh.  The only thing he misses is the bad breath of a guy who hasn’t brushed his teeth in at least 24 hours, whose only meal was a slice of American cheese on white bread, and not the good stuff made of real milk.

Or when you try to make good use of the few minutes you have to speak with your client before being yanked out of the back because the judge needs you, but are interrupted by some guy yelling, “yo, yo, you a lawyer?” followed by some demand or complaint. It’s not that he’s intentionally being rude, but that street talk doesn’t tend to be polite and mediated. Loud and demanding gets the best results, even if it doesn’t fly with a more genteel crowd.

And yet, there has been no better article that I can recall that allows you to sniff without scratching.  Pinto covers so many aspects of the process that most of you, despite your interest, will never experience. When you’re trying to wrap your heads around what’s going wrong with the system, this will give you a real view of the system you’re trying to imagine.

A couple of things are worth pulling out of Nick’s article, which is to say that you still have to read the whole thing rather than just the bits mentioned here.

When it was Tomlin’s turn in front of the judge, events unfolded as predicted: The assistant district attorney handling the case offered him 30 days for a guilty plea. After he refused, the A.D.A. asked for bail. The judge agreed, setting it at $1,500. Tomlin, living paycheck to paycheck, had nothing like that kind of money. ‘‘If it had been $100, I might have been able to get that,’’ he said afterward. As it was, less than 24 hours after getting off work, Tomlin was on a bus to Rikers Island, New York’s notorious jail complex, where his situation was about to get a lot worse. (Emphasis added.)

You might think Pinto left something out there.  What about the judge explaining why he set bail at $1500?  Was it because Tomlin was a flight risk, the only lawful basis for setting bail under New York law (despite what clueless pundits tell you)? Was it for the legally unacceptable reason that he posed a danger to the community?  Certainly, there must be a reason for not only setting bail, but setting bail in the amount of $1500.

First was the turnstile jumper. The prosecutor laid out the charges and the offer. The defendant took the deal and would have to complete community service. Next was the homeless teenager. The prosecutor asked for bail of $5,000. Hechinger argued that bail was unnecessary. The judge set it at $250. The teenager didn’t have it. He would be sleeping at Rikers.

The guy with the suspended license was released on his own recognizance — without any bail — and would be due back in court in a couple of months.

Next appeared the man who broke his girlfriend’s bowls. The prosecutor wanted bail set at $2,500. Hechinger argued that there was no reason to believe his client wouldn’t return to court on his own. The judge set it at $1,000. ‘‘Your honor, I called the mother, she said she could afford $250,’’ Hechinger said. ‘‘I’m sorry, counselor, that’s my bail decision,’’ the judge responded.

No, Pinto didn’t leave anything out. That’s how it happens. The mechanics of setting bail are mindless. The prosecutor asks, the defense argues against it, a compromise number inexplicable pops into the judge’s head and comes out his mouth. That’s all she wrote.  Challenge the number and the judge adeptly shuts down further discussion.

There are a lot of defendants to be arraigned, bails to be set, and the wheels of justice grind on.  You, because you are a rational player, feel compelled to believe that there must be some science to it, some explanation for it, when a judge fixes a bail amount. There’s not.  There isn’t time for deliberation, for investigation, for personal consideration. It’s reflex and routine.  It’s mechanical.

And it’s deadly.

A 2012 report by the New York City Criminal Justice Agency, based on 10 years’ worth of criminal statistics, bears this out. In nonfelony cases in which defendants were not detained before their trials, either because no bail was set or because they were able to pay it, only half were eventually convicted. When defendants were locked up until their cases were resolved, the conviction rate jumped to 92 percent. This isn’t just anecdotal; a multivariate analysis found that even controlling for other factors, pretrial detention was the single greatest predictor of conviction. ‘‘The data suggest that detention itself creates enough pressure to increase guilty pleas,’’ the report concluded.

For low level offenses, the most critical decision affecting the outcome of conviction is the fixing of bail. And of all the decisions in the criminal justice system, it’s given the least amount of thought.

Much as the more serious, particularly the federal, cases are the subject of great discussion, angst and concern, it’s the petty offenses that affect the most people by a million miles, and destroy more lives with tiny cuts. It’s what Amy Bach called ordinary injustice, and it rarely rises to the level of our radar.

It made it onto Nick Pinto’s radar, and he told it like it is. Read it.


18 thoughts on “Nick Pinto Shows Why Bail Sucks

  1. REvers

    ‘‘The data suggest that detention itself creates enough pressure to increase guilty pleas….’’

    No shit. They needed 10 years of data to figure that out? Really?

  2. DDJ

    “It’s what Barbara Bach called ordinary injustice, and it rarely rises to the level of our radar.”

    Did you mean “Amy Bach” or are they the same person?

    —and did you ever finish the book? I searched your site but couldn’t come up with a your review.

    I also note that it’s now for sale used @ ~$4. Still worth a read?

    1. SHG Post author

      I always screw up Amy Back’s name the first time, and always need to be corrected. It’s like I have a block.

      I did finish the book, but never did a full review. Amy (she invited me to a party at Christiane Amanpour’s CPW apartment, we now I get to call her Amy) used in=depth examples throughout the book that either worked great or failed miserably, based on where one was and what one’s experiences were. Some of her examples from down south really didn’t work for me at all. They were flagrant and obvious, whereas her notion of “ordinary injustice” really should have been more subtle and banal.

      Still, it’s worth buying and reading.

  3. Eliot Clingman

    Bail is a mess no doubt, and the prosecutor, defense counsel and judge are all lawyers, so this undermines respect for lawyers. To say more would be changing the subject, so that’s it!

    1. SHG Post author

      That’s unacceptably simplistic. Each has a different function in the courtroom. The key is fulfilling that function, not that they’re lawyers. It’s like saying a baseball, football and beach ball are all balls, so we should be able to play golf with them. It misconstrues the nature of their function.

      1. Eliot Clingman

        But prosecutors become defense council or judges all the time. Furthermore, performing either function, however distinct, is problematic if it is a component of a Kafkaesque process.

        1. SHG Post author

          And when they change functions, they perform differently. That’s how it should be. And you ignore the most critical function, that of the judge.

  4. William Doriss

    The Bail Trap explains exactly what goes on in the courtrooms and the devastating consequences. I agree, this is the best account I’ve seen or read. Very accurate. I’m stunned.

    My own cases have been posted multiple times: The judge quadrupled the bail commissioner’s recommendation from $2500 to $10,000 for no other reason than that the State requested it. The state was not New York, but a neighboring jurisdiction. They’re all pretty much the same, as far as I can tell. It’s a national epidemic and a disgrace. If my bail had not been met by a family member, my life would most certainly have been ruined. As it turned out, my life was altered, and not for the better,…

    Except that now, I’m a whole lot more knowledgeable about law and the so-called criminal justice system.

    Lives are altered if not ruined. Am still burned up after thirteen years. I want the record corrected! They will not let me correct the record. In the words of the Chief Public Defender, “They don’t care!” They do what they do because they are empowered, and are never held accountable for mistakes and gross misconduct in the courtrooms of Amerika. We’re keeping it short today.

  5. Patrick Maupin

    Speaking of theory and practice, it’s a nice theory that if you’re a good person, there will be lots of friends and family and acquaintances ready and willing to bail you out; the judge can sleep soundly, secure in the belief that the fact that no one steps forward speaks volumes about who you are and what you may have done.

    In practice, it becomes a slippery slope, with the judge deciding that not enough people have come forward, and they certainly haven’t offered their all. He may have a dim understanding that the defendant’s support network may not be quite as wealthy as his own, but still, obviously anybody could come up with $1000, so if the defendant’s mother claims she can only afford $250, she’s trying scam him, and it’s not gonna fly — who does she think he is?

    I wonder if someone could get around being classified as a bail bondsman by offering zero-interest loans to PDs for them to use posting bail for their clients.

    1. Patrick Maupin

      Of course, as soon as there is more money in the system to cover bail, the price of bail will go up.

    2. SHG Post author

      Ironically, as Pinto notes, my pals at Bronx Defender tried doing just that, and the bail bondsmen (also my friends, I hasten to add) went after them and shut them down for stepping on their profits. Business is a bitch.

      1. Patrick Maupin

        It was that article that made me think of it — I was uselessly and idly speculating if there was an additional step that would make it all good, but additional research seems to indicate that I should just shut up and pretend I didn’t write that paragraph…

  6. Amy

    I practice in one of the few jurisdictions that simply doesn’t have money bail. You can be held if you’re found to be a flight risk, or pose a danger to the community, or if you have some other kind of hold (parole hold, immigration detainer, etc.) Otherwise, you get released either ROR or with conditions (electronic monitoring, phone or in person check ins with a probation officer, etc.).

    The dirty secret of the system: the rates of failure to appear are pretty much identical in jurisdictions like ours and in jurisdictions where money is used to try to “guarantee” a defendant’s future appearance. And we do not have statistically significantly higher rates of pre-trial rearrest than bail jurisdictions. The math simply doesn’t support the public policy that most jurisdictions have adopted here.

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