Bail is Busted: How Jail Really Works

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

In 2010, only 17 percent of those held on $1,000 or less made bail at arraignment. The rest stayed locked up. Some posted bail later, but half of them remained in a jail cell until their cases were disposed of. The figure is almost as bad for people held on $500 or less: Forty-four percent of them—all presumed innocent, remember—stayed in jail until their case was decided, simply because they couldn't make bail.

Jail is an unpleasant place to be. But avoiding a pre-trial stint at Rikers is only one reason many defendants would rather plead guilty to a lesser charge and walk out of court with nothing more than a criminal record and a sentence for time served.

"These people have families," says Robin Steinberg, executive director of the Bronx Defenders, a nonprofit that offers legal services in the Bronx. "They have children they need to care for. They have jobs that they're going to lose if they don't show up for work. It doesn't matter whether they're innocent—there's a whole range of subsequent damage to their lives and the lives of people close to them if they're held on bail."

As head of the Criminal Justice Agency, Jerome McElroy keeps the numbers that show just how unfair the administration of bail in New York is.
C.S. Muncy
As head of the Criminal Justice Agency, Jerome McElroy keeps the numbers that show just how unfair the administration of bail in New York is.
At 100 Center Street, arrestees 
pass through central booking and face their critical first court appearance: the arraignment.
Sasha Patkin
At 100 Center Street, arrestees pass through central booking and face their critical first court appearance: the arraignment.

If you're not in this country legally, there are added stakes: Pleading out at arraignment is your last best hope of avoiding deportation. Once at Rikers, your immigration status is almost certain to be screened and passed on to Immigration and Customs agents.

Faced with such high stakes, it's no wonder that so many defendants cave when prosecutors mention bail.

"It happens all the time," Steinberg says. "We see clients at arraignment not wanting to plea, saying they want to fight their case. Then they hear the bail that the prosecutor is going to ask for, and they'll turn to their defense lawyer and say, 'I'll take the plea.'"

This use of bail has been an integral part of the justice system for decades. But recently, there has been a renewed push to return bail to its statutory purpose and make sure that no one stays behind bars just for being poor. Some, such as the Bronx Defenders, are pursuing reform through education and impact litigation. Others, like Occupy Wall Street affiliates, are contemplating direct actions that will test the courts' commitment to justice.

In the city that never sleeps, there are courtrooms processing arraignments and setting bails every day of the week, at every hour of the day and night. The arraignment is the moment when an arrestee becomes a defendant, when he's handed off from Jerry Orbach's realm of Order to Sam Waterston's world of Law. Interestingly, most court procedurals on film and television spend little time on the arraignment, if they show it at all. As a result, most people have little understanding of what actually happens at an arraignment. And that's too bad, Steinberg says, because "the arraignment is actually the most important proceeding in the entire process. What happens in the arraignment determines everything that comes afterward."

Spending a day or a night in an arraignment court is as disturbing as it is edifying. Prisoners are brought into the courtroom and processed in a matter of minutes. A judge can easily decide the fates of more than a dozen defendants in an hour. Here's how the process usually goes:

Recently arrested people are brought from lockup and wait outside the courtroom for their case to be called. This is the time when most of them first meet the lawyer assigned to their cases, a harried public defender with a stack of folders more than a foot high on her table. They talk for a few minutes, and then the court officer calls the case number. The prosecutor may make an offer for a plea bargain. If he doesn't or if it's refused, the court turns its attention to the question of bail.

The defense lawyer, the assistant district attorney, and the judge all have the same paperwork: the current charges, the defendant's rap sheet, and a bail recommendation from the Criminal Justice Agency, a nonprofit that interviews everyone before he or she is arraigned.

In making its bail recommendations, the CJA is essentially evaluating a defendant's flight risk. If a defendant is released, will he skip out on the next hearing and go on the lam? To make those recommendations, the agency asks six questions, meant to ascertain his ties to the community and his priors, of every defendant. Based on that information, the agency assigns each defendant a score that ranges from -12 to 12 and makes its best guess for the court. In roughly a third of cases, the CJA recommends that defendants be released without bail on their own recognizance. In around half of the cases, it recommends against release on own recognizance (ROR). About a fifth of the time, it classifies a defendant as a moderate risk and recommends that bail be set.

But the CJA's recommendation is hardly the final word on whether bail will be set for a defendant. According to the agency's own data, the most influential factor in whether bail is set and in what amount is what the prosecutor asks for. If prosecutors ask for a high bail, defendants are unlikely to be ROR'd, and the judge will probably set the bail high. What the defense says matters much less.

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