Commercial bail agents play a role in deciding who goes to jail and who stays free, since these businesses allow families to bridge the gap between what they can afford and what bail a judge has set.

Photo by: Jarrett Murphy

Commercial bail agents play a role in deciding who goes to jail and who stays free, since these businesses allow families to bridge the gap between what they can afford and what bail a judge has set.

Almost every hour of every weekday, someone is being arraigned somewhere in New York City. When most people are at work, arraignments are underway on Target Street in a worn-looking section of Staten Island’s Stapleton neighborhood, in the basement courtroom on Queens Boulevard, and in two chambers in the criminal court building just up the street from Yankee Stadium. In Manhattan and Brooklyn, as in the Bronx, there are two arraignment courtrooms running each day. All boroughs but Staten Island offer night court as well; Manhattan devotes two judges to it. The arraignment courtrooms—usually staffed with a rotation of judges—range in dimension from a tiny classroom-sized space in the Bronx courthouse basement to a large theater-like room at 100 Centre Street in Manhattan. The main arraignment “part” (as they call it) in Brooklyn has a kind of dingy grandeur, while its counterpart in Queens is all dark wood paneling and crisp marble. Each room has “In God We Trust” inscribed above the judge’s chair. The arraignment process is essentially the same in any city courthouse.

That process really begins on the street. Not every encounter with the NYPD ends in arraignment, of course— officers can issue summonses for mi nor infractions, and Desk Appearance Tickets (which are technically arrests but allow a defendant to stay free until his first court date) can be written for crimes up to and including Class E felonies like “forgery of a vehicle identification number.” But if the police take a person into custody, he or she is usually brought to the precinct and then to the lockup at the borough courthouse to await arraignment, which state courts have said is supposed to occur within 24 hours of the arrest. The police who work in arraignment court don’t carry firearms because they walk in and out of the lockup where weapons are not permitted. Many wear black baseball batting gloves in case they need to handle somebody.

An armed New York State court officer runs each arraignment courtroom, doubling as chief guard and court clerk. Assisted by three or four other court officers, he or she calls the docket (“Dock et ending 343. Doe, John. Defendant is charged with violating section 178.20 of the penal law and related charges.”) and the defendant steps into the court room. He usually isn’t handcuffed but is required to stand with his hands clasped behind his back. In some courtrooms, the next defendants wait on benches off to the side. They are overwhelmingly black and Hispanic.

The assistant district attorneys (ADAs) who work arraignments tend to be young, but already many have developed smooth ways to say the same things over and over again without sounding bored by their own words. First, the ADA hands over any notices she is filing—like a demand for alibi, an advisory about looming grand jury action, or a transcript of something the defendant foolishly told the police (like the guy in the Bronx who allegedly said to his arresting officers, “Fuck you. Fuck this. I already got a summons. Fuck America.”) Or, in some cases, she will make an offer, suggesting the defendant plead guilty and do three days of community service, for example.

If the offer is turned down—or none is made in the first place—the ADA will usually say, “As to bail, your honor,” and announce how much she wants and why.

The framework for that request is section 510.30 of the New York Criminal Procedure Law, which says that in setting bail, “the court must consider the kind and degree of control or restriction that is necessary to secure [a defendant’s] court attendance when necessary,” and lists elements that the judge can consider in setting that degree of control, from the defendant’s ties to the community—which might prevent him from fleeing—to the seriousness of the crime. A more serious crime can mean more prison time, and therefore more incentive to go on the lam. In rare cases, the prosecutor will ask for remand, which means the person is jailed without bail. In a few others, the prosecutor might consent to the defendant’s pretrial release without bail.

When the defense attorney gets to talk, he usually asks for his client’s release, or at least a “more reasonable bail” than the prosecution requested. The defense lawyer might question the reason for the police search or critique the wording of the criminal complaint. He might point out the defendant’s father or wife in the audience. Often, he will tell the judge that his client simply cannot pay a bail as high as the prosecution wants, or any bail at all.

The judge, prosecutor and defense attorney each have in front of them a report from the New York City Criminal Justice Agency (CJA), a private nonprofit entity that has a city contract to interview all criminal court defendants and make recommendations on whether to release them on their own recognizance, or “ROR” in court jargon. CJA’s inter viewers—there are 96 citywide—meet defendants in courthouse lockups and conduct brief interviews, asking questions like whether they are working, if they have a phone and whether they expect someone to show up for them in court. Then the interviewer tries to verify the information with a few phone calls and checks the defendants’ rap sheets to see if there are other open criminal cases against them or any “bench warrants” active at present or in the past. Bench warrants are what a judge issues when someone misses a court date or fails to do community service or pay a fine after being sentenced. CJA asks these questions because its research has shown that the answers are linked to a defendant’s likelihood to appear in court. When all the defendant’s information is gathered, the CJA interviewer computes a score on a point scale and uses the result to recommend the defendant for release or identify him as a moderate or high risk to flee.

Depending on whose case that recommendation helps, either side might mention the CJA report in the arraignment hearing. Or no one might. The judge may or may not consider it in rendering—once everybody else is done talking—a bail decision.

Many arraignments never reach the bail decision. Roughly half of criminal cases in the city end at arraignment, either with guilty pleas, dismissals, or “ACDs”—adjournments in contemplation of dismissal, under which the case is dismissed if defendants avoid arrest for the next six months or year. Of the cases that continue beyond arraignment, most defendants (about 62 percent) are released on their recognizance.

But given the volume the city’s courts handle, the 36 percent of continuing cases where bail is set represents more than 51,000 people a year. And as CJA data indicate, having bail set and making it are two different stories. Even if you’ve got the cash, paying bail in New York is not easy. Families who show up at arraignment court with money in hand can be seen racing to pay the court cashier before the defendant is trucked back to Rikers Island, the Vernon C. Bain jail barge docked off the Bronx or the Manhattan Detention Complex. Bail can be posted at any jail for an inmate held anywhere in the city.

But lawyers tell anecdotes about long waits to spring somebody. “If they bring them to Rikers, then it takes hours and hours to get out,” says Stephen Mahler, a criminal defense attorney whose best known client, City Councilmember Dennis Gallagher, had to pay $200,000 to be released pending trial on rape charges, despite having no criminal record and community ties sufficient to get him elected to public office.

When a family needs a bail bond, there’s a different burden to be borne. When her brother was brought before a judge in Brooklyn for assaulting their grandmother by closing a door on her arm, Cynthia (whose last name—like those of most of the defendants referenced in this story—won’t be used because of the stigma that might attach) and the public defender pleaded for his release, claiming the grandmother had dementia and didn’t know what she was saying. The prosecutor didn’t relent, and asked for $50,000 bail. The judge set $15,000. Cynthia was able to gather enough money to post a bond and get her brother out. But getting a bail agent to post the bond cost the family a premium of $1,500 that they won’t get back, even if her brother makes all his court dates and is found innocent. “So it sucks,” she says. “It just sucks.”

Once bail is set in a case, a defendant is most likely going to spend some time behind bars after arraignment. In 2005, defendants made bail at arraignment in only 11 percent of cases where bail was set, according to CJA research. When he makes bail at arraignment, the defendant is released at the courthouse and his pre trial detention is limited to the time the police had him in custody before arraignment. Everyone else spends some time—hours, days or more—in side. A little more than a quarter of defendants make bail later on, and 20 percent are released without bail after their arraignment, often because the trial judge overrules the arraignment judge’s bail decision.

Then there are those who never make bail. Forty-two percent of criminal defendants who have bail set do not post bail before their case is completed by plea, dismissal or trial. More than a third of those with bails less than $500 never make it, nor do 42 percent of those with bails between $500 and $1,000. Defendants in some boroughs have a harder time making bail than others: In the Bronx, about half of those with bails less than $1,000 were kept in for the duration of their cases. Some research indicates that a higher proportion of defendants made bail citywide in 1980 than do now.

Felonies are, of course, a major part of this bail caseload. But while defendants in most non-felony cases—those involving misdemeanors or even violations, which aren’t crimes—are released without bail, more than half of those non-felony defendants who have bail set never post it, say CJA’s figures. Low-level defendants who are detained pretrial serve a median pretrial term of five days—at $181 a day in city expenses per inmate—but in 2004, CJA found that one misdemeanor defendant had been locked up for 332 days.

The bails in these minor cases were probably set low: $500, $1,000 or maybe $1,500. The problem is that defendants with bails like that can fall into a gap: They are too small for most bondsmen to handle—the 10 percent fee on a $500 bond, for example, is just not worth most businesspersons’ trouble—but still too much for many defendants to afford. “What we mean by high [bail] is low by middle-class standards,” says Matthew Knecht, a supervising attorney at Neighborhood Defender Service of Harlem. “$500 is enough to keep our clients in indefinitely.”

That might be no big deal if those low-level defendants were headed to jail anyway after conviction. But half of them weren’t, according to a CJA study that found almost a quarter of non-felony detainees were acquitted, and another 24 percent received a non jail sentence. So their lack of money, rather than their guilt, was what kept them in jail.