Chapter 5: No Escape From The Politics Of Bail

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The criminal courthouse on Targee Street on Staten Island. As is true with other aspects of the criminal justice system, the bail decision can come down to where and when you are arrested.

Photo by: Jarrett Murphy

The criminal courthouse on Targee Street on Staten Island. As is true with other aspects of the criminal justice system, the bail decision can come down to where and when you are arrested.

The truth is, judges aren’t only worrying about whether defendants will fail to show up to court. Somewhere in the back of their heads, there must be the fear that, as Lorin Duckman puts it, “I’ll be Duckmanized.”

In 1997, Duckman was removed from the Brooklyn Criminal Court bench by the State Commission on Judicial Ethics as punishment for more than a dozen instances of judicial misconduct that included imposing sentences that were inconsistent with the law, berating prosecutors for their bail requests and making inappropriate comments about prosecutors’ and defendants’ appearances or background—including gender and race. But while Duckman is hardly a poster boy for judicial temperament, he does personify what can happen to a judge when he’s accused of coddling defendants by setting lenient bail. The charges that doomed him only emerged after a bail decision turned him into a target of tabloid scorn.

Duckman’s problems really began in 1996 when he lowered to $2,000 the bail on a defendant accused of violating an order of protection by contacting his girlfriend, whom he had beaten up. The man made bail and three weeks later killed the girl friend and himself at a car dealership owned by one of then Mayor Giuliani’s best friends. The way Duckman explains it, he had little choice but to set reasonable bail because the defendant had been held for 40 days without trial on a misdemeanor. But the events that followed turned him into a pariah, led the mayor and Governor Pataki to call for his ouster and triggered his downfall.

Every judge knows that the same thing could happen with someone he releases. “The judge is a human being,” says Judge Z., the veteran judge who spoke on background. “He sits there and looks at the case and says, ‘All the factors appear to be that this person comes back, but this guy, given his record, will probably commit another crime.’ Most of his crime has been nonsense—small stuff—but you think, ‘What if the next time he really beats up on someone and he hurts someone?’ And that’s when you get the headlines of the papers: ‘Why was this guy out?’”

Judges can get in trouble for setting excessive bail, too: Henry R. Bauer, a judge in upstate Troy, was removed in 2004 for setting $25,000 bail on a defendant accused of stealing cigarettes. But the press is much more likely to attack a low bail set in a highly publicized crime, or a release that leads to another offense. “I think that judges are human and I think that to say that a judge would never have that in the back of his mind would be an impossible notion,” says Judge Newton. “On the other hand, I think judges understand what their obligations are and take those seriously and set bail that’s appropriate for the case before them because we don’t have a crystal ball.”

The court system’s spokesperson, David Bookstaver, has battled for years to get reporters and commentators to understand that bail is only meant to se cure attendance at court, not to punish. “I tell the judges, ‘Any bail a defendant can make, in the press, that’s a low bail.’” Bookstaver says judges resist that media pressure. “I think overwhelmingly, judges make bail decisions according to the law,” he says. “There is a great deal of criticism of judges who act as independent jurists. But judges do keep in mind the presumption of innocence here.”

Public Defender Steinberg disagrees. “I think judges are afraid not to set bail because they don’t want to be the judge who ends up on the front page of the New York Post for releasing a guy who then does something terrible,” she says. “I think judges and prosecutors take cover behind bail.” Sometimes, however, even high bail doesn’t afford enough cover. When a Peruvian illegal immigrant was implicated in the murder of three Newark college students this summer, the public furor was directed not only at his immigration status but at the fact that he was out on bail in a sexual abuse case. His bail, however, was $150,000 and he put up $5,000 to get a bail bond for the full amount—a fee not easily afforded by a low-income person, but apparently not enough to discourage the man from allegedly committing three murders. Perhaps what the Vera Foundation reported in 1964 is still true: “The trouble with the present [bail] system is that by relying on money it jails too many of the poor; it also protects too little against the dangerous.”

Some states’ bail statutes and the federal bail law list public safety as one criterion a judge can consider in releasing defendants. In other words, if the court thinks there’s a chance the defendant will strike again, it can remand him or, in some systems, set higher bail. New York State’s bail laws do not allow that consideration, but judges probably weigh it informally.

This year, as in many years past, New York’s legislature is considering several proposals for making public safety an explicit criterion in setting or denying bail. Several call for a “Jilly’s Law,” named after Jill Cahill, an Onondaga County woman whose husband was accused of assaulting her, got bailed out, and tracked his wife down at a hospital to kill her in 1998.

Joan Christensen, an assemblywoman from the Syracuse area, is sponsoring one of the Jilly’s Law bills. “It would give the judge a lot more leeway in considering other criteria because right now the only criteria is, ‘Will the defendant appear in court?’ It just gives a lot more reasons or facts that could be considered in set ting bail. It allows the court to consider any record of violations of court orders. It will allow the court to consider history or patterns of violence or threats. The violent nature of the crime would be considered as well as the impact that crime had on the [victim],” she says.

A separate bill by Assemblywoman Amy Paulin of Westchester would require judges to consider the likelihood that a person accused of domestic violence might intimidate or harm the complaining witness. In other words, the judge would have to try to predict future violence. “Where it is a first offense, the judges would have to look at the pat tern of the relationship,” Paulin says. “It would be pure judicial discretion. Sometimes they would guess right and sometimes they would guess wrong.”

Prosecutors and some judges agree that public safety should be addressed explicitly, if only to make more formal and transparent an element that probably already enters unofficially into judges’ bail decisions. If public safety were made an explicit criterion for bail, then at least there would be a process to evaluate the supposed threat. States that employ a public safety criterion for pretrial release generally have in place a procedure for challenging—on an expedited timetable—preventive detention.

The trick, however, would be how to predict which released defendants will commit crimes that actually threaten public safety. The vast majority don’t. A CJA study of New York City re-arrests of released defendants in 2001 found that while 17 percent of those released before trial were arrested for new crimes, a mere 3 percent were re-arrested for violent crimes.

If everyone getting arraigned were accused of rape or murder, the argument for considering public safety before releasing them might be stronger. But 80 percent of criminal cases these days are misdemeanors. To wit, attorney McGregor Smyth of The Bronx Defenders, asks, “What exactly is the substantive risk to the community of jumping a turnstile?”