Skeptical of Bail System—and of Plans to Reform It

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The de Blasio administration plan would help defendants facing bails that are too high for them to pay, but perhaps too low for a commercial bail agent to supply.

Pearl Gabel

The de Blasio administration plan would help defendants facing bails that are too high for them to pay, but perhaps too low for a commercial bail agent to supply.

In a move heralded as a reform to the city’s criminal justice system, Mayor de Blasio recently unveiled a $17.8 million plan to replace bail with “supervised release” for some defendants accused of misdemeanors or nonviolent felonies.

Once the program rolls out next year, officials anticipate that judges will be able to order community supervision in lieu of bail for 3,400 people awaiting trial, which could reduce the average daily population of Riker’s Island by 200 people.

The initiative aims to improve the current, much-criticized system, which results in the incarceration of thousands of defendants accused of minor crimes who lack the money to post even relatively low amounts of bail—often less than $1,000. The vast majority of those people end up pleading guilty in exchange for their release, even in cases where the district attorney would be unlikely to prove the charges if the case went to trial.

But even as defense lawyers and other advocates say that efforts to reduce the rate of pre-trial imprisonment are long overdue, they’re also expressing reservations about the new plan.

“You don’t have to doubt the sincerity of this administration to nonetheless be skeptical,” says David Feige, founder of the Bronx Freedom Fund, a nonprofit that posts bail for misdemeanor defendants in the Bronx.

One of the major concerns identified by Feige is “mission creep,” meaning that judges could order pre-trial supervision for people who otherwise would have been released with no oversight. When a person is arraigned after their arrest, and their case isn’t resolved or dismissed at the outset, they can be remanded to custody, have bail set or be released on their own recognizance. The latter, ROR in courtroom parlance, is the most common outcome, occurring in about two-thirds of cases that continue past arraignment.

Feige, like other advocates, suggests there’s reason to worry that judges will err on the side of extra supervision when releasing people, due to their fears that a defendant will later commit a serious crime.

“When you give them the option to cover their behinds, institutionally, they will avail themselves of that option,” Feige says.

Tina Luongo, head of The Legal Aid Society’s Criminal Practice flags a second possible pitfall—”overprogramming,” or requiring defendants to in unnecessary counseling or drug treatment programs.

“If a person doesn’t need drug counseling, then that shouldn’t be a condition,” Luongo says. “If the person doesn’t need mental health counseling, that shouldn’t be a part of their conditions.”

At the same time, defense attorneys say that as a practical matter, compulsory attendance in a program—even an unnecessary one—is preferable to staying in jail. “I, as a defense lawyer, would rather an individual is in a program than that she’s in Riker’s Island,” says Edward Sapone, president of the New York Criminal Bar Association.

He adds that some types of programs, like substance abuse treatment, could help ensure the return of drug-addicted defendants who otherwise might miss their court dates because they weren’t sober.

Luongo says that advocates’ fears about pretrial supervision haven’t materialized so far in Queens or Manhattan, where the Criminal Justice Agency has operated pilot programs since 2009 and 2013. In that time, the agency has supervised around 2,700 defendants accused of drug offenses, larceny, fraud and other non-violent felonies.

“In the two pilot programs, the conditions were not onerous,” Luongo says. “There was not a lot of overprogramming of people.”

Criminal Justice Agency director Jerry McElroy says that defendants in the pilot projects are expected to meet with a caseworker for an initial assessment, after which they’re supposed to stay in phone contact at least once a week and have in-person contact twice a week in the beginning—though that requirement often is relaxed after a brief period.

Caseworkers refer around 50 percent of the defendants under supervision to a drug or mental health counseling programs, but on a purely voluntary basis, he says.

Even with the program, defendants sometimes don’t come to court—though often that’s due to a medical emergency or other unexpected situation, McElroy says. When that occurs, the agency contacts the defendants and advises them to appear in the courthouse as soon as possible. Most of the time, they do so and are able to remain out of jail.

“Our experience has been that the vast majority of those in the program who miss a court date come back, and come back quickly,” McElroy says.

Read City Limits' 2007 investigation of the bail system

Read City Limits' 2007 investigation of the bail system

Overall, only 4 percent of program participants have been terminated for failing to appear in court. An additional 6 to 8 percent have been terminated based on new arrests.

Other areas of the country with pre-trial supervision, like Washington, D.C., require different levels of supervision for defendants, depending on their histories. Some people merely have to check in with agency officials, while others are subject to conditions like mandatory drug testing and curfews.

Meanwhile, reformers like Feige question the imposition of conditions on people who are presumed innocent of the charges. His organization, the Bronx Freedom Fund, posts bail for misdemeanor defendants who are clients of The Bronx Defenders. Since 2013, 97 percent of the almost 230 people supported by the Bronx Freedom Fund have returned for all of their court dates.

He says that only 9 percent of the defendants bailed out by the organization have pleaded guilty to a crime, while more than 50 percent have had the charges thrown out.

“These people would have been in jail on cases that were dismissed,” he says.

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