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.