To Fix Bail, Fix Bail

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.

29 thoughts on “To Fix Bail, Fix Bail

  1. Dan

    I may have said this before, but once upon a time, I was a young ADA (in a jurisdiction that has nothing to do with Bill DiBlasio) assigned to work arraignments on Easter Sunday. Worst day ever. On Easter Sunday, and perhaps the day before, in anticipation of Eastern Sunday, families get together. And when families get together, there are squabbles. And sometimes someone calls the police. Often, they regret it, the next day. Or the next minute. Anyway, when someone calls the police, someone gets arrested, so you have a family, kids and all, showing up at arraignment, pleading with the judge, its all resolved, he didn’t do nothing, it was just a misunderstanding, we’d like to all go home together, I’m sorry I called the police, he’s sorry, can we just go home for Easter dinner. The judge that day was concerned that people wouldn’t return to court (for their cases to be dismissed?) even though my position was ROR for all. So, she had to set some bail, but she didn’t want to be mean- so she set $100 on most people. But most of these families didn’t have $100 bucks cash on them, so everything was just exacerbated to the nth degree. Unhappy families. On Easter. Lot of good that did.

  2. Piedmont

    It’d be nice if all prosecutors and judges had to 1) spend some time as a defense attorney, 2) go on a tour of their local jail, and 3) certify that they’ve read the Eighth Amendment.

    That said, a lot of the time defendants don’t get admitted to bail is because their defense attorney is lazy/incompetent and so the prosecutor and judge don’t know that there’s some sort of support structure available to help the defendant pretrial. Without something to hang their hat on, especially in a jurisdiction that doesn’t have a lot of pretrial programs available, a small dollar amount is one of the only tools available.

    1. SHG Post author

      1. I agree that defense lawyers often blow it at arraignment, for a variety of reasons, none of them good.

      2. Despite 1 above, you still approach this as if bail is presumptively necessary rather than the opposite. Presumptively innocent people arrested for trivial offenses presumptively do not need bail.

  3. Leonard

    I agree, Bail has morphed into a defacto punishment for many offenders, to keep those we want in jail…in jail. As you correctly stated, those less fortunate has needlessly feeding the prison industrial complex and costing taxpayers wasted dollars. And you are correct that the system, the standard as correctly applied should eliminated the problem. To correct this we have to overcome 2 things, the fact those in charge don’t want to be held accountable for the outcomes of their decisions. If we let an offender go without bail and he subsequently commits another more heinous offense, then the finger is pointed at the Judge and prosecutor. We don’t like that. Secondarily, if you ask the question, “Why do we do the things we do?” It’s usually because it’s always been done that way. How many times have we walked into a organization and ask them why they do the things they do? A solid majority will say, “That’s the way it was done before I got here.” Now the issuance of bail is done because it’s something that we do, especially in the cases of the less fortunate. In order for this to change, our leaders will have to provide cover to the judges and prosecutors; until then…expect the same.

    1. SHG Post author

      A bit simplistic. While inertia provides most people’s motivations, judges are big boys and girls. It’s not too much to ask that they do their job, even if it means breaking out of an age-old rut. They can do it if they want to. If they want to.

  4. L

    Your piece boils down to, “We don’t need a change in law. All we need is for judges to do something they aren’t ever going to do.”

    Which, if true, means we do need a change in law.

    Similarly, this problem could be solved overnight if (a) people stopped committing crimes in New York, and (b) cops stopped falsely arresting people in New York. No new laws needed, and you can turn Riker’s Island into a museum and gift shop. But again, that’s not a real proposal.

    1. SHG Post author

      If judges have the ability to fix it today, a change in law won’t change anything as judges will still have the ability to fix bail or not. If they choose not to fix the problem, the problem won’t be fixed.

      1. L

        I see that point — any change in the law that allows judges to choose will not fix the problem. What about a change in the law that does not allow judges to choose?

        1. SHG Post author

          That would be a very radical change, and I see problems with undermining judicial independence. The function of a judge is to exercise discretion, any way you twist it. Every solution comes back to judges doing their job.

          1. Dave

            You could change the law but still give judges discretion. Make release without bail a strong presumption. Then require judges who want to impose bail to make a long list of factual findings that must be supported in the record from a mandatory bail hearing. I.e. it will be a major pain in the butt and lots of extra work for the judge and prosecutor if they want to impose pretrial bail. The judge still has discretion but has to really have real reasons to impose it before they jam up their docket with a bail hearing.

          2. L

            It would be a radical change, but you yourself say judges aren’t going to start doing their jobs, and I believe you, so why not propose a radical change?

            No presumptions. Not even strong presumptions. Automatic ROR after every misdemeanor arraignment, with certain enumerated exceptions. Exceptions for a prior parole violation, probation violation, bond violation, etc. Exception for a prior contempt finding for failure to appear. Exception for prior conviction of escape or other enumerated crimes that might be relevant. No catch-all exception for “other circumstances justifying setting bail” or some such. Maybe some of those exceptions will result in presumptive ROR, maybe others will be treated as all cases are now. Whatever.

            Yes, it’s radical. But given the gravity of the current situation and the dim prospects of it being solved in the correct way, why isn’t this a good proposal, or at least a good first approximation?

            1. SHG Post author

              There may well be a viable systemic alternative proposals which could be put into place after a few years, but I would much rather start today by putting the burden where it belongs and where it can be address today.

              It’s counterproductive to let judges off the hook. Systemic alternatives shift attention away from judges rather than on them.

              A couple points on the details. A lot of people have rap sheets in NYC, often with miscellaneous warrants. This is life on the street for a lot of young men. It may be more indicative of a system out of control than anything else. Think of Kalief Browder. Would any of this have helped him?

              Most first time clean defendants with misdemeanors get ROR’d anyway. They’re not the people sitting there with $500 bail. Save the people who need saving, not the people who don’t and get ROR’d anyway.

      2. Harry

        Maybe a change in law that ties the judge’s hands and prohibits bail being fixed for trivial offences when certain risk factors are not in evidence. Like mandatory minimums in reverse. Mandatory ROR. Judges will love it.

        1. SHG Post author

          Whenever we try to tweak the system to eliminate the discretion, we end up with disastrous unintended consequences. For example, require mandatory ROR for all misdemeanors, and suddenly felony charges increase by 72%, as police trump up charges to keep people in jail. Was that what you had in mind?

          1. L

            Okay, I have the perfect solution. Mandatory ROR for all misdemeanors, but don’t tell the police about it.

    2. Patrick Maupin

      Yes, if everybody always had the willpower to do the right thing, we’d live in a utopia.

      In theory, somebody who manages to become a judge ought to be able to do significantly better on the marshmallow test than most of those who commit crimes and even a bit better than most of those who become police officers.

  5. pml

    Do you see this as a NYC, large urban are problem? Because in the Northern NY area bail is rarely if ever set on a Misdemeanor.

  6. Nigel Declan

    Given that the right to release and reasonable bail is enshrined in the constitution, are judges in fact bound by any laws passed by legislators dictating conditions and terms upon which clients can be released? Since bail is the province of the judiciary, could a judge so inclined simply elect to set bail as he deemed constitutional (presumably consistent with existing jurisprudence), New York lawmakers be damned?

    1. SHG Post author

      No and yes. The Constitution prohibits excessive bail, so if a judge fixed excessive bail, it’s subject to review by habeas corpus. But the Constitution doesn’t provide for the basis upon which bail is to be fixed, so it’s left to states to regulate, and judges to fix.

  7. John Neff

    I think it may also depend on the mixture of first time offenders and frequent flyer’s. The frequent flyer’s are not going to run but they might not show up. The judge knows if they will show up and set bail accordingly. They don’t know anything about the first timers so they may hold them.

    1. Patrick Maupin

      So, it’s OK to grant bail to a serial murderer who always shows up, but if a 40 year old has never been in any trouble before, it’s reasonable to assume he’ll leave the country if he gets a traffic ticket?

        1. SHG Post author

          Will the two of you chill out. John’s initial comment is wrong; first arrests for trivial offenses almost always get ROR’d. So a discussion growing out of a inaccurate assertion is completely pointless. Find something more useful to fight about.

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