One Bail At A Time?

While bail, in general, is a fiasco in application, New York, in particular, has a pretty good bail law. Not only does the law provide a veritable cornucopia of options to make bail, but it limits the imposition of bail to risk of flight. New York has no community safety component, even though our progressive former chief judge would like to add that to the law, to make bail more available.*

But that’s the law. That’s the theory. This is the practice.

Spend even a little time in Kings County Criminal Court, and a pattern to the proceedings quickly emerges. A person recently arrested in Brooklyn is brought before a judge to be arraigned. An assistant district attorney asks the judge to set bail. The judge, without asking whether the defendant can afford the payment, offers him two unworkable choices: Post the full amount of bail now or pay a visit to the bail bondsman, an expensive proposition.

Most are forced to default to a third option: Unable to put up the cash, the defendant is left to spend weeks and months—in some cases, even years—at the widely condemned jail complex on Rikers Island. There, the defendant awaits trial as one of more than 7,000 inmates—about three-quarters of New York City’s jail population—convicted of no crime and detained only because they can’t buy their freedom. The whole arraignment takes no more than a few minutes, and then it’s on to the next one.

I wasn’t kidding in my pre-Thanksgiving admonition, even if it’s an epiphany to the Atlantic’s Ian MacDougal.  Bronx Defenders’ Robin Steinberg has created the Bronx Freedom Fund, to cover bail for those who can’t pay it but deserve to be out. But unfortunately-named Brooklyn Defender Services’ (“BDS”) idea of how to deal with this travesty takes a different approach.

Public defenders concede that defense attorneys share some of the blame: From the outset, overworked criminal-defense lawyers lacked the time and resources to dig into their clients’ backgrounds and challenge the many bail determinations that departed from the law.

To be clear, this relates more to public defenders, not defense attorneys. It’s not necessarily their fault, as the product of being over-worked is being unable to do their job thoroughly. But then, the inability to make needless bail is largely a poor man’s problem, and the poor use public defenders. So it makes sense, then that BDS, like Bronx Defenders, is trying to come up with ways to deal with the problem.

Here are the basics of the Brooklyn Defenders’ approach: An associate with the law firm Kramer Levin Naftalis & Frankel, which is partnering with the organization, will work pro bono with one of the public defenders to document each client’s finances, background, and community ties. They will then present their findings to a judge and either argue that bail is unnecessary or propose a form of bail the client can realistically meet. Where bail remains outside of the defendant’s financial reach, they will challenge the ruling in an appeals court.

This is a noble approach, with only two huge flaws. The first flaw is that it doesn’t work.

At an earlier stage in his case, a judge had given Omatiga two choices if he wanted to post bail: He could deposit $50,000 with the court, or he could pay a bondsman more than $6,000 to post a $100,000 bond. Omatiga didn’t have that kind of money. He had a job, but he was attending vocational school and helping raise his five-year-old son.

Omatiga’s lawyers—Debora Silberman, a public defender, and Alejandro Ortega, an associate at Kramer Levin—presented the judge with a type of bail application that’s central to the Brooklyn Defenders’ initiative. The lawyers had spent the preceding weeks interviewing their client and his family, and reviewing their finances . . ..

After a prosecutor spoke briefly,** Sullivan denied the defense attorneys’ request.

To their credit, they didn’t stop there, and went on to appeal the bail ruling.

The appellate court partly agreed. Last week, it cut Omatiga’s bail in half without explanation, though it left in place the decision to require cash bail or a bail bond. It’s not clear he’ll be able to meet that reduced amount.

The second flaw is that this was the outcome after a huge expense of time and effort. Multiply this by a thousand, ten thousand. All for naught anyway. This isn’t to suggest that BDS was wrong to try, but that this couldn’t possibly work. The resources of fighting to get judges to use the law on the books, to offer the panoply of bail methods permitted, to seriously take into account the defendant’s financial ability to make bail, are extraordinary in one case, and overwhelming in a system.

So the problem isn’t the law, which is exceptionally good, providing everything a defendant could want. The problem isn’t that BDS, any more than Bronx Defenders, doesn’t care about their defendants. They do. Rather, the problem is that judges aren’t using the law, aren’t giving meaningful consideration to the  statutory criteria for the imposition of bail, aren’t allowing alternate means available. They just rule and roll. And even in subsequent motions, even on appeal, the statutes are ignored.

Yes, that’s how bail actually works. There is no legislative solution. PDs would do well to be better prepared in advance of the initial arraignment, where bail is first set and becomes nearly impossible to reduce afterward, but that’s limited by the workload and availability of PDs to spend more time per case, per defendant. And even if they did, there’s no reason to believe it would change much of anything.

Yet again, the solution exists and has been staring us in the face all along. To fix bail, fix bail. Judges can do it today, this moment, if that’s what they choose to do. For all this hyperventilating, these journalistic epiphanies, these unduly passionate spokesmodels expressing how horrifying it all is, the answer has always been right in front of us.

The laws are great in New York. The only limitation is that judges, including superior court judges, refuse to do as the law requires. They can fix that any time they want.

*This makes no sense whatsoever? Why yes, it doesn’t. Go figure.

**In New York, Kings and Bronx County, we also have progressive reform District Attorneys. It’s hard to tell, since they are mostly indistinguishable from any other prosecutor except at election time.

8 thoughts on “One Bail At A Time?

  1. Pedantic Grammar Police

    Why would a judge treat defendants fairly? What is the upside? The downside is well-known (Willie Horton). The upside does not exist. Wouldn’t it be irrational for a judge to risk his career for a defendant?

  2. Richard Kopf


    By and large, bail bondsmen will have a special place in hell upon their demise. Any judicial system that depends upon them to serve the function of assuring the presence of a defendant is shameful.

    The only reason New York won’t adopt a pretrial services approach under a system similar to the Bail Reform Act of 1984 (which is far from perfect) is that New York talks the talk but will not walk the walk when it comes to poor New York criminal defendants. New York’s bail system is disgraceful, but you know that and I should stop wasting your valuable space.

    All the best.


  3. B. McLeod

    There was a recent case in the 5th Circuit, Jauch v. Choctaw County, wherein a Mississippi sheriff was left with some troubles because, instead of following a state law on bail hearings, he followed Choctaw County custom of holding a defendant with no access to the courts for several months, while the Choctaw County courts were out of session.

    What you have there in NYC is not quite as bad, in the sense that the detainees do get their hearing (even if it is a futile mockery). On the other hand, it seems like someone would have some serious 1983 exposure because the judges are ignoring the constitutional framework for bail, as well as ignoring express requirements of their own, applicable state statutes. Maybe the judges get absolute immunity, but jailers who are holding detainees, and who are basically on notice that the detainees are being systematically denied their rights to pretrial release, may find themselves having to pony up, just like a certain, Mississippi sheriff. It’s going to be hard for them to say they didn’t know, when it’s even in the local paper, and nobody is disputing that the local practice is contrary to state law.

    1. SHG Post author

      That would be the one where the algorithm says, “poor blacks don’t come back to court, so fuck ’em,” but without the judge having to take any responsibility for his decision.

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