Chapter 4: Judgment Calls—Judges and Bail

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Criminal trespass arrests are one of several misdemeanor categories where arrests have boomed in recent years.

Photo by: Jarrett Murphy

Criminal trespass arrests are one of several misdemeanor categories where arrests have boomed in recent years.

According to Judge Z., a veteran criminal court judge who asked not to be named, arraignments are one of the least popular assignments among judges. “It can be tedious, to put it kindly. ‘Oh here's another buy-and-bust. Oh, here's another prostitution case. This guy spat on the sidewalk. This guy had a bottle in a brown bag in the park.' It can get to that,” he says. He adds that judges working arraignments have a tougher schedule than their counterparts in trial courtrooms. What's more, the judgments made at arraignments are necessarily made on the fly. One quirk of the bail system is that while the decision on whether to release or set bail is crucial to how the rest of a criminal case plays out, judges must base their decision on scant, hastily assembled information of questionable reliability.

Bronx Judge Doris Gonzalez, for ex ample, had to weigh what to do with Darryl—accused of misdemeanor menacing, who had an open assault case and a record of robbery and gun charges, but had made his past court dates and came to the police station voluntarily after detectives called him—and Tony, who came in on misdemeanor assault charges and had a long felony record in Louisiana and New York but was living in a shelter, meaning he couldn't afford much bail at all. She set $750 on both. “I'm going to set bail because I'm not sure he's going to show up,” she said of Tony.

“At trial, you're in an entirely different posture,” says Judge Juanita Bing New ton, administrative judge for New York City's criminal courts. “You have all the parties before you. The judge and/or the jury is going to be looking strictly at the evidence with an eye towards answering a single question, which is, ‘Does the evidence convince you that this person is guilty beyond a reasonable doubt?'” In the bail decision at arraignment court, however, there is a crystal ball aspect to what judges are supposed to do. They have to try to predict, based on a hint of the evidence in the case, not just how likely it is that a person will be convicted—and, if convicted, how likely it is he'll be jailed—but what the chances are that the defendant will recognize his likelihood of losing and decide to flee. Some say that making those sorts of pre dictions requires relaxing—very carefully—the presumption of innocence. “For the purposes of bail, the presumption doesn't hold,” says New York City Bar Association President Barry Kamins. “A judge is supposed to look at all the factors. One of them is the seriousness of the crime.”

But what about in the misdemeanor cases that increasingly dominate criminal court dockets in New York City? From 1996 to 2006, the number of felonies processed by New York City courts dropped 36 percent. The number of misdemeanors and lesser offenses rose slightly over that period and their share of the overall caseload swelled to 80 per cent. Meanwhile, the number of arrests in New York City climbed 17 percent but police officers issued 79 percent fewer Desk Appearance Tickets that would have spared defendants from spending time behind bars awaiting arraignment. Taken together, the numbers mean that the context of the bail decision is changing in New York City. “What's happening is there is a shift,” says Robin Steinberg, executive director of the Bronx Defenders. “Because the system is handling more misdemeanors, what you're set ting bail on are misdemeanors.” Ricardo Barreras, a fellow from the Soros Foundation studying bail in the Bronx, says it's like there's a new population facing bail decisions these days. “It's the nature of who's going through the system now. It's basically flipped,” he says. “The people who are being put through the system are there on charges that weren't being arrested or charged years ago.”