Chapter 7: Room for Reform? Bail and its Alternatives

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Juan Burgos could afford $2,500 bail, but not the nine months he did on remand before a Bronx jury acquitted him.

Photo by: Jarrett Murphy

Juan Burgos could afford $2,500 bail, but not the nine months he did on remand before a Bronx jury acquitted him.

The Correctional Association’s Gangi wonders why judges in New York have so few options for balancing the needs of the courts with the rights of defendants. “Why don’t we come up with ways to divert people from jail,” he asks, “save the city money and treat people more justly and more fairly and reduce the discrimination against poor people—and in NYC, it’s poor people of color?”

The last time New York City embraced bail reform, it did so fleetingly and only under legal pressure. In 1984, after a federal court cited the city for jail overcrowding, the city released more than 600 defendants on their own recognizance or 10 percent bond—a form of bail that requires only a small deposit against the value of the bail. But releasing people wasn’t the city’s long-term solution to the problem. “To prevent future forced releases,” a mayoral report explained, the city undertook “a $314 million building program.”

That’s a typical policy response. Correctional overcrowding usually forces changes in jail policy rather than bail policy. Systems in other parts of the country have sometimes even released convicted people in order to accommodate those presumed innocent and held on unmet bail. “When you reach a certain population level at the jail and there’s new incoming business in terms of arrests and bookings, one of the ways

[to relieve overcrowding] is releasing those who have already been sentenced by giving them credit for time served or diverting them to alternative treatment centers,” says Tim Murray, president of the Pretrial Justice Institute, a reform advocacy group.

But even as an imperfect impetus for reform, overcrowding is not a factor in New York City. Statistics reported by the Department of Correction show that the city’s jails today are less crowded that they’ve been since 1994. Meanwhile, the Department of Correction is pursuing a plan to reopen a jail in Brooklyn and build a new one in the Bronx. While that plan is described as replacing rather than augmenting capacity on Rikers Island, it doesn’t seem that a lack of space is a problem for New York City jails.

That open space, however, could be a problem in itself for people awaiting trial. There’s more room for them to wait behind bars, and systems tend to use that room. “I’ve worked in com munities where crime has gone down and remained down and detention has gone up,” Murray says. When that happens, he takes a look at the jails to see who is there. “What you find is [the same thing] you have found in this country over the last 50 years, and that is a large number of individuals who are awaiting court process.” Indeed, as the crime rate has fallen in New York City, the percentage of jail inmates who are pretrial detainees has steadily increased. The absence of bail reform in New York City is not for a lack of alter natives. The state bond statute itself allows eight forms of bail, but cash bail and commercial surety bonds secured by some property or cash are the only ones regularly used. Also permitted, but almost never used, are unsecured surety bonds—which could be more affordable—as well as appearance bonds. Appearance bonds involve no bail bond agent or family members. They are a deal struck between the court and the defendant. Sometimes they involve property as collateral. But New York State law also allows unsecured appearance bonds, which are essentially just pledges to appear in court or pay the full financial penalty.

The American Bar Association has called for the abolishment of commercial bail bonds and four states—Illinois, Oregon, Kentucky, and Wisconsin— have outlawed them. In their place, the states have offered alternatives. Illinois, for example, has a 10 percent bail system similar to the one New York City used under federal duress in 1984. Under a 10 percent bail system, defendants post 10 percent of their bail amount directly to the court.

Setting up new forms of bail is one way to reduce unnecessary pretrial detention. Another is to come up with an alternative to bail itself. Judges who don’t want to jail poor people but are legitimately worried about them missing court are in a bit of a jam: Bail could be punitive, and ROR is a gamble. A middle ground would be some sort of release under supervision. Some systems use electronic bracelets to keep people from fleeing, but they aren’t perfect solutions. If the technology comes with high user fees, it might be as out of reach for the poor as financial bail. And the very ease of imposing such monitoring can lead to its abuse: People with little risk of fleeing go from being released without conditions to dragging around an ankle bracelet.

In the nation’s capital, courts send most criminal defendants to the District of Columbia Pretrial Services Agency, which operates a battery of programs to keep track of those released before trial without bail. Some of those defendants face virtually no conditions, but about 5,000 people at any time are en rolled in the agency’s supervision programs, some of which involve personal contact with one of the agency’s 200 odd caseworkers, plus drug testing, electronic monitoring and sanctions for failing to follow the rules. The agency also identifies people jailed on low bails and alerts the courts, prompting their release into the agency’s supervision programs. “We’re proud that money doesn’t make a difference in this city,” says Susan Shaffer, director of the D.C. program. Court skipping rates in the D.C. program are slightly lower than New York City’s.

The question is, could supervised pre trial release work here? There is some evidence that it might: A 2005 CJA pilot project to contact by phone all people in Queens and Brooklyn who missed court dates found that in the half or so of cases where phone contact was made, more than 80 percent of the defendants contacted went to court to clear up the matter. But a full program would have to contact more than just half the defendants who blow their court dates. And crucially, Shaffer says, D.C.’s courts have a public safety provision that allows detaining people before trial if they are deemed dangerous; New York doesn’t have such a provision.

Prosecutors like District Attorneys Johnson in the Bronx and Donovan on Staten Island are skeptical that a program like D.C.’s could work in larger and more populous New York. So is the Bar Association’s Kamins. He feels we’re stuck with bail: “Is there any other way? If there is, I don’t think they’ve found it yet. Other than financial obligations, I don’t know of another way to ensure that someone will come back. I wish there were another way, but that’s the system.” If there’s no escaping bail, one way to offset its discriminatory impact would be to simply pay the bails of low income people doing pretrial jail time on minor charges. That’s exactly what The Bronx Defenders will start doing soon through their Freedom Fund.

Supplied with bail money from the Flom Foundation and other sources, the Freedom Fund will bail out and offer social services to a random sample of Bronx Defender clients who meet certain criteria—say, bails less than $1,500 set on defendants who were recommended for release by CJA. The Fund is still working out the details to achieve a mix of clients that they can afford to spring from jail. Freedom Fund caseworkers will do outreach to stay in touch with clients and keep them going to court, so that the fund doesn’t lose money.

“The hope is that the Freedom Fund is self-sustaining,” and that it produces “some hard data to advocate for reform on how bail is used in New York City,” Bronx Defenders Executive Director Steinberg says. Researchers will compare what happens in the bailed cases to a control group of un-bailed prisoners. Lead researcher Ricardo Barreras says the world of pretrial detention has been virtually ignored by scholars. “Almost everything that’s been done is looking at what’s happening in prison, when in New York the number of people being put through jails is much larger,” he says.

A similar project, the Nassau Bail Bond Project, bailed about 150 people over a seven-year span during the 1990s and had only two absconders, says Rebecca Bell, executive vice president of the Education and Assistance Corporation, the human services agency that ran the project. “We would go through the list of the detainees in jail. We would look for people who had reasonable ties to the community and low bails—anything under $500—and who simply because they couldn’t come up with the bail were sitting in jail waiting for trial,” she explains. The program, which targeted only nonviolent crimes, would have up to 25 people out on bail at a time, with two caseworkers visiting them in the field to make sure they were keeping up with the conditions of their release. “We would monitor them to make sure we didn’t lose money.” The program ended when the bail bond agent who was assisting them moved out of the area. “We couldn’t find anyone who was willing to do this, even though we were guaranteeing the money,” says Bell. “We would actually love to start it up again because those people are still there, but we can’t because we don’t have the money.”

Getting more people out on bail would put more defendants in a position to fight their cases to the end. That could be a boon to justice. But it would also pose a challenge for the city’s overburdened courts, which manage volume by avoiding trials. More than a half of cases end in guilty pleas or dismissals at arraignment, and most other cases end in pleas or dismissals later on. Fewer than 1 in 500 city criminal cases went to trial in 2006.

Judge Newton says judges are not pressured to obtain a certain amount of pleas. There are, however, real constraints with which jurists must contend. “There is one pressure, and that is to get a lot done, because of the sheer volume. We have to move cases along for that purpose,” she says. If fewer people pleaded guilty early in the case, she adds, “We would have to have more judges sitting in the criminal court to do more cases. We’re stretched right now.” Given the enormous volume of cases the court system faces, credit is due for the many decisions that Newton’s judges get right. Like Clarence, a goofy kid in a Miami Vice T-shirt arrested for violating New York City Parks Regulation 1-03, or trespassing. It seemed odd that one could be arrested at 12:45 in the afternoon for trespassing in a park, but the DA sought bail anyway. When Judge Dena Douglas released him instead, Clarence bounded out of the courtroom chanting, “I can get to work. I can get to work. Yes. Yes.”

A couple weeks later in the same Manhattan courtroom, a skinny 18-year-old named Israel faced a marijuana possession charge. The DA offered a sentence of time served if he pled. But the public defender wanted to avoid giving him a criminal record. The lawyers huddled with Judge Marc Whiten, he adjourned the case, the lawyers huddled again, and all three reached a deal: With a plea to disorderly conduct and completion of a drug program, Israel could avoid a criminal record. Other judges named in this article made their own good calls.

But there are also cases where the decision to release, set bail or remand exposes the system’s flaws. One Manhattan ADA offered a guy a mere three days community service on a plea to misdemeanor possession of a weapon, and when the defendant turned that down, asked for $1,000 bail; the judge set $500 and the defendant didn’t make it right away. On another day in the same court house, Bianca—charged with possessing drugs and a weapon—was offered a sentence of “time served” if she pleaded guilty, meaning she would have walked free if she said yes. She said no, and was returned to lockup until she came up with $250 cash.

Sometimes bad bail decisions get reversed, but only after the defendant has done time waiting to see a different judge. Like the woman accused of stealing prescriptions who was held on $1,500 but released five days later on her own recognizance. Or Charles, who was charged with domestic violence and spent five days in jail on $500 bond until another judge released him. Then there were the two defendants accused in an assault who were held on $2,500 each and released five days later. And Daniel, accused in another domestic assault, who waited 48 hours for his arraignment and had bail set at $750. Five days later a different judge released him. All these people did time because they couldn’t pay for their liberty. Their release at their next court date indicates that the belief that they were flight risks, if that’s what the first judge really was motivated by, was not widely held.

Criminal cases are complicated how ever—rarely black and white. Take the case of Juan Burgos. It should have been a good day for the criminal justice system when in October 2006 it acquitted Burgos of a Class B drug felony involving the alleged sale of two bags of heroin. The police hadn’t found any drugs on him, they had no eyewitness and hadn’t used prerecorded drug buy money, his lawyer says. He was the wrong guy, and he got off. The only problem was that he’d already served nine months in jail.

Burgos, now 44, had pleaded guilty to a drug sale in 2000 and was on probation when he was picked up for the alleged heroin sale in March 2005. He was able to make the initial $2,500 bail after 17 days in jail. But when he was arrested on a new misdemeanor count (for resisting arrest), the probation department issued a violation, and the judge remanded Burgos.

That was in January 2006. His trial was in October. The intervening months were not pleasant. “There was a lot of gang activity. Thefts. People getting slashed on the patio and in the hallways,” Burgos says of life in Rikers. Meanwhile, his being in jail meant he lost his chance for permanent housing, his SSI benefits (which he says are for a mental condition and diabetes) and his wife. (They split up as the case dragged on.) After a two-week trial, the jury found him not guilty of the felony. In June 2007, he pleaded guilty to the resisting charge, and was sentenced to the time he served awaiting his earlier trial—a long sentence for a minor charge. When Burgos finally got out, he was able to restore his SSI. He’s now paying a friend $400 a month for a place to sleep. He tried to reconcile with his wife, but it didn’t work out. One wonders if the experience made Burgos more or less likely to run afoul of the law again.

The Bronx DA says in a statement: “The reality is that not everyone is trusted by the courts to show up on his or her adjourn date. Where a defendant is on probation for a felony offense and is rearrested for another crime, the chance of incarceration increases, and with it the risk of flight.”

Burgos’ case illustrates the price that pretrial detention can exact. For him, the problem was not bail but remand. But on Rikers, he says, he met people who were there because they could not afford $100 bail. The Bronx district attorney’s office was offering Burgos 18 months to three years in prison if he pleaded, Riley says. In the middle of his trial, Burgos turned to his lawyers and said, “I think I’ll take the year and a half.” He was scared of a longer sentence, and 18 months looked like a bargain because he had already done nine. Riley talked him down. Had Burgos pled—given that he was ultimately acquitted—it would have been another false plea chalked up to the pretrial detention system.

It’s impossible to know how many false pleas—the legal term for an innocent person pleading guilty—occur in the city’s criminal courts. What is known is that false pleas are just one impact of a system that, for tens of thousands of defendants every year, conditions a person’s liberty on their ability to pay. Those who can’t afford pretrial freedom suffer the disruptions and danger of incarceration and face tougher odds of proving their case. If they lose, they face potential lifelong consequences. If they win, they must try to put their lives back together.

For years there has been a debate in legal circles about whether false pleas are a tragedy or merely a tool. Josh Bowers, a legal scholar at the University of Chicago who used to work as a Bronx Defender, argues in an forthcoming paper that false pleas only bother those who “hold on to this last vestige of an outmoded truth-seeking ideal.” He does not. For people busted on minor charges who must choose between getting out of jail by saying “guilty” or returning to the lockup by claiming they aren’t, pleading out is a good deal. They ought to take it. Who can afford the principle of refusal? “The fact is that the criminal justice system no longer has much to do with transparent adversarial truth seeking,” Bowers writes. “It has much to do with the opaque processing (rightful or wrongful) of recent arrests.”

So are false pleas wrong? To Brooklyn public defender Laura Saft, the answer is obvious. “It’s bad,” she says, “because the courts are supposed to do justice and it’s not justice taking pleas from innocent people.” Or holding them in jail for three months, or two weeks, or even five days just because they were short on cash.