The Slow, Painful Death of Bail in New York City

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Ourside the lockup at Queens Criminal Court.

Ourside the lockup at Queens Criminal Court.

On Thursday the state’s chief judge said he would order the review of all bails imposed in low-level cases where a defendant did not pay, and push courts to consider alternatives to the cash transactions that now determine whether thousands remain free or behind bars awaiting trial.

Judge Jonathan Lippman’s proposals came shortly after State Sen. Michael Gianaris announced plans to propose legislation eliminating bail. Earlier this summer, Mayor de Blasio instituted policies to end the use of bail in certain misdemeanor cases. And at the behest of Council Speaker Melissa Mark-Viverito, this year’s city budget includes $1.4 million for a fund to pay some low-level bails.

Today’s array of officialdom against bail was unimaginable eight years ago, when City Limits published a 15,000-word exposé on the injustices and inefficiencies that riddle the system. Three years later, when our work was cited in a Human Rights Watch report called “The Price of Freedom,” the prospects for meaningful change were still bleak. A hint of movement came in 2012, when state law was changed to permit nonprofit organizations to operate bail funds; the Bronx Defenders had run such a fund from late 2007 to 2009, before it was found to run afoul of the law.

It wasn’t until 2013, when Lippman first called for bail reform, that sweeping changes seemed possible. He proposed altering the law to allow judges to consider public safety in bail decisions, install a “presumption of release” against which prosecutors who have to argue and permit judges to consider means other than cash bail to ensure a defendant returns to court.

The turn against bail clearly piggybacked on broader concerns about the nature of policing in the city, which fueled opposition to criminal trespassing arrests, low-level marijuana busts and stop-and-frisk.

That was not the atmosphere 12 years ago, when a city school discipline push included “providing information to probation officers and the courts about students charged with crimes so that they can make the right bail and sentencing decisions.” Later that year, City Hall bragged that because of its Operation Spotlight, which targeted repeat misdemeanor offenders, “the percentage of defendants detained on bail has increased nearly 20 percent.”

It’d be unfair to single the Bloomberg administration out for its support of bail. The archives of the state legislature from these years are filled with proposals for laws to increase the use of bail, impose higher bails, or deny bail altogether, and the odd proposal to rein bail in.

The tone began to change in 2009, when the Bloomberg administration earmarked $900,000 in federal stimulus funds for a system to expedite bail payments. In 2012, Bloomberg’s team conducted a study of mental illness in the corrections system and concluded that: “The mentally ill are less likely to be able to post bail and stay in jail twice as long as inmates who don’t have mental health issues, even if they’ve committed similar crimes and have similar bail amounts because they tend to have fewer financial resources and/or family and friends willing to post their bail.”

This mirrored a broader change in how the Bloomberg team talked about law and order. Not only was stop and frisk declining dramatically in his final months in office, but on one of Bloomberg’s final days in office, City Hall took to celebrating a fall in the city’s incarceration rate.

If the end is in sight, it’s not around the corner. Bail is still a reality for many defendants in New York City. Gianaris’ bill has yet to emerge, and Lippman’s proposal from 2013 still awaits action; the chief justice’s moves today more strictly regulate bail and provide alternatives to it, but don’t kill it. A spokeswoman for the Council speaker today said the bail fund will begin operating “in coming months.”

July 27: BkLive panel debates bail:

  • Christopher Beall

    How about Kalief Browder whose slow and painful death was caused by lack a few thousand dollars for bail? Bail reform goes back to the 1960’s when various groups promoted the reforms we are still discussing. Recent testimony from the Bronx Defenders suggests that the extant bail statute in NYS reflects many of those reformist concerns but that the statute is routinely ignored by the judicial branch. Innumerable studies show that the vast majority of low-level offenders released without bail return for all their court dates. Washington DC has abolished money bail. IT’s about time that NYC does the same.