Bail is Busted: How Jail Really Works

Thousands of New Yorkers are stuck behind bars because they're too broke to get out

Bail is Busted: How Jail Really Works
John Hersey

Lauren DiGioia's face was stony and impassive beneath bright blue hair as she was brought into a courtroom in handcuffs on March 18.

At 2:30 the previous afternoon, DiGioia, 27, had become the first person arrested by the New York City Police Department during Occupy Wall Street's six-month anniversary at Zuccotti Park. DiGioia was taken in for dancing on the public sidewalk outside the park after police told her not to.

"Four police officers forced me to my knees," DiGioia recalls. "They put the zip cuffs on really tight, and then they threw me in the paddy wagon."

Unlike her cell mates, Occupier Lauren DiGioia, arrested for dancing on the sidewalk, had access to bail.
C.S. Muncy
Unlike her cell mates, Occupier Lauren DiGioia, arrested for dancing on the sidewalk, had access to bail.
DiGioia says her time in jail showed her how different the criminal-justice system is for her less fortunate cell mates.
C.S. Muncy
DiGioia says her time in jail showed her how different the criminal-justice system is for her less fortunate cell mates.

DiGioia was initially taken to the Seventh Precinct, but because she was being charged with resisting arrest along with disorderly conduct, she was moved to central booking and thrown into a cell holding about 35 other women. Charismatic and garrulous, DiGioia was soon talking with the other inmates.

"A lot of the women I met that night were in on really minor charges," she says. "Marijuana, petty theft, getting in a fight in a nightclub. They were sort of shocked that I'd been arrested for dancing on the sidewalk, but it didn't surprise them because they see stuff like that in their marginalized neighborhoods—people stop-and-frisked and profiled for the way they look."

After a night and the better part of a day in jail, DiGioia looked tired in court as the assistant district attorney read out the charges. Her lawyer said she didn't wish to make a plea, and the judge ordered her released without bail until her next hearing.

"One coming out!" a court officer shouted as another unlocked her handcuffs and pointed her through the gate to the court gallery.

DiGioia cleared the swinging doors, and a dozen fellow protesters sitting on benches in the gallery stood and moved, arms outstretched, toward her. As DiGioia approached them, her composure cracked and collapsed, and she broke down, doubling over in tears and falling into their arms.

The group moved quickly to the hallway outside of the court, where DiGioia tried to explain to her comrades that she was fine.

"I'm OK," she insisted. "I'm OK. It's just . . . the other women. I met some amazing women in my cell last night, and I just know they're not going to have anyone waiting for them when they're arraigned. They're not going to have a lawyer. They're not going to have anyone posting bail. They're not going to have anyone watching. It's not right."

A few weeks later, DiGioia was more composed while describing her experience but clearly still affected. "It was just really sad to see the difference," she says. "We were all there together at first, but then because I had a lawyer and access to bail and they didn't, we went down these separate tracks. I watched a lot of women get left behind, and it broke my heart."

As the Occupy Wall Street movement has introduced a new young generation of mostly white, mostly middle-class activists to civil disobedience, arrest, jail, and the inner workings of the criminal-justice system, they're learning firsthand what New York's poor, black, and immigrant communities have known for years: The criminal-justice system is rotten.

Stop-and-frisk policing might be the highly visible doorway into the system, filling jail cells and court dockets with poor black and brown New Yorkers on mostly minor charges. But it's in court—and specifically at arraignment—where the full discriminatory weight of the justice apparatus is brought to bear.

It is a central tenet of American justice that as these arrests enter the court system, people are innocent until they are proved guilty. But the open secret of New York's criminal courts is that there simply aren't enough judges, prosecutors, and hours in the day to give each of these defendants a fair chance to prove their innocence, to challenge the evidence against them, and to mount a defense.

New York's criminal courts are underfunded and overwhelmed with cases—more and more of them misdemeanors and minor offenses as the NYPD pursues its so-called broken-window strategy.

If even a fraction of those presumed innocent fought their cases in court, the system would grind to a halt. To keep things moving, judges and prosecutors need defendants to plead guilty to something as early in the process as possible. And the single most powerful tool to extract a guilty plea is the threat of bail.

In the state of New York, bail can only legitimately be set for one reason: to ensure that a defendant will return to court for his or her next hearing. But everyone who works in criminal justice in New York City knows that's not what's going on at all.

For no particular reason other than institutional habit and a fondness for round numbers, bail in New York is generally set in increments of $250 and, more commonly, $500. In 40 percent of cases where bail was set in 2010, it was $1,000 or less.

Some people wouldn't have much trouble coming up with $1,000. If they don't have it themselves, they have friends, a family, and a community that could scrape it together. But those aren't the people who make up the overwhelming majority of criminal defendants.

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