Bail is Busted: How Jail Really Works

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

The law sets out a number of factors that may be considered when determining if someone is a flight risk: character and reputation; employment; ties to the community; criminal record; whether there are prior missed court appearances; the strength of the evidence; and how serious the sentence might be in a finding of guilt.

Perhaps citing some of these factors to support their arguments, the prosecutor and the defense attorney each make a suggestion to the judge. Sometimes other factors creep in, too. Last month, prosecutors asked for bail for defendants because they hadn't submitted to the NYPD's optional iris scans.

After hearing from both sides, the judge schedules the next appearance and announces whether bail will be set. The judge isn't required to explain his or her reasoning, and most don't.

Moira Meltzer-Cohen is part of the team planning protest actions 
to call attention to the need for bail reform.
C.S. Muncy
Moira Meltzer-Cohen is part of the team planning protest actions to call attention to the need for bail reform.

Nestled in a warren of offices on Duane Street, across Foley Square from the city's courts, is the untidy desk of Jerome McElroy, the director of the Criminal Justice Agency.

McElroy is avuncular and unbelievably talkative—his wall bears a fake diploma his daughters made for him that is issued by the "University of Loquacity." And McElroy has a lot to talk about: His organization is sitting on the most massive, comprehensive database of criminal-justice statistics you've never heard of, and the picture that data paints isn't pretty.

Getting good information from the criminal-justice system isn't always easy. The NYPD is notorious for its opacity, for stalling Freedom of Information requests, and for finessing its own statistics. But if you want a vivid picture of what happens to New Yorkers after they're arrested, just ask McElroy.

For 35 years, the CJA has held a city contract to screen every single person being held for criminal arraignment in New York City, interview them, and make a recommendation to the court about setting bail.

That means the CJA has information on every single one of the 300,000 arraignments made in criminal court each year, data all the more valuable because the agency also tracks those cases through the system to their final disposition.

Here are some of the things the data from 2010 show: Eighty-four percent of criminal defendants were male; 43 percent had full-time employment or were in school full-time; half of them were black; and another third were Hispanic.

At arraignment, about half of the cases are disposed of. In those cases, more than half of the defendants pleaded guilty, with most of the rest either being dismissed or getting an adjournment in contemplation of dismissal, in which the case goes away as long as the defendant stays out of trouble for a set period of time.

In the cases that aren't resolved at arraignment, a tiny handful of defendants deemed especially risky are remanded without bail. Two-thirds of defendants are released on their own recognizance with no bail set while they await their next hearing. And the remaining third have some bail set. The percentage of cases in which bail is set is small, but what it adds up to is this: In 2010, more than 8,000 people had bail set at $1,000 or less and stayed in jail for the days or weeks until their case was resolved simply because they didn't have the money to get out.

Also, the data show that being stuck in a cell has a statistically significant effect on the outcome of your case. A CJA analysis found that 51 percent of those released at arraignment on non-felony charges were ultimately convicted. For those who stayed in jail as their case proceeded, the conviction rate shot up to 78 percent. Those who stayed in jail all the way until their cases were resolved were convicted 92 percent of the time.

"It's like a law of physics," says David Feige, author of Indefensible: One Lawyer's Journey Into the Inferno of American Justice. "A person incarcerated tends to stay incarcerated. A person at liberty tends to stay at liberty. When you're out, you're negotiating from a position of power; you're much less likely to take a plea that puts you back in jail. When you're in, it's just the opposite."

Keeping people in jail before their trials isn't cheap. When Human Rights Watch investigated the use of bail several years ago, it found there were 16,649 non-felony defendants in jail because they couldn't post a bail of $1,000 or less. With an average stay of 15.7 days and a daily cost of $161, the investigators calculated that those detentions cost taxpayers more than $42 million.

There's one statistic the CJA doesn't capture because there's no record of it anywhere: how often prosecutors threaten bail but it isn't set because a defendant opts instead to take a plea. What we do know, though, is that the overwhelming majority of convictions in misdemeanor cases—99.6 percent—come not because the defendant was found guilty at trial but rather because they pleaded guilty.

"Bail is the tool that gets those results," Feige says. "It's not the legal purpose of bail, but to put it in pharmaceutical terms, it's an off-label use."

If the bail regime is against New York law, unjustifiably expensive, and patently unfair, why does it persist?

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