Bail is Busted: How Jail Really Works

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

"It's a good question," says the CJA's McElroy. "When you talk about comprehensive bail reform, you get into questions of who the hell wants it. And who doesn't want it."

Defense attorneys mostly agree that the system is problematic, but they're worried about what might replace it. If the courts expanded the supervised-release pilot program being tested in Queens, it might reduce the number of people jailed for want of bail, but it might also lead to more oppressive state supervision of people who would otherwise have been released on their own recognizance.

"When you talk to prosecutors, there's more resistance," McElroy says. "'Are you talking about a system in which the bail imposed has to be makeable by the defendant? Doesn't appear to be in my interest, because you and I and everyone else knows that I have a better chance of getting a conviction if the guy is in than if he's out.'"

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.

It isn't just the drive for convictions that motivates prosecutor interest in maintaining the status quo, though. For one thing, guilty pleas are the only tools prosecutors have to redirect defendants into Alternative to Incarceration Programs for substance abusers and battered women.

And speaking of battered women, how would bail reform affect the guy who's being arraigned because he beat up his girlfriend last night, and she finally called the police? Right now, a judge can set a high bail and make sure he cools off for a while before he's back on the street. That isn't a legally allowed use of bail, but because there isn't any mechanism in New York for preventive detention, it's the only way to keep him locked up. Understandably, prosecutors don't want to lose that tool.

Then there are the judges. The present regime gives them a great deal of freedom: They don't have to explain their bail decisions, and they're not held accountable for them. But the thing that really motivates judges' reluctance to change the bail system isn't freedom. It's terror.

In the back of every judge's mind is the fear of finding themselves on the cover of the New York Post for releasing a pre-trial defendant who goes on to commit some terrible crime while awaiting his or her next hearing. The most recent member of the bench to go through that wringer was Brooklyn judge Evelyn Laporte, who last winter was slammed in a Post story headlined "Why Was He Freed to Kill?" after a man whom she'd released on his own recognizance for a felony drug case killed a police officer the next month.

As an anonymous judge told Human Rights Watch, "Judges set bail knowing they will never be criticized publicly for putting someone in jail, only for letting someone out without bail who then commits a crime." With every reason to play it safe, judges and prosecutors have no structural incentive to let defendants out to fight their cases from home.

"There's a lot of momentum against changing anything," Feige says. "Stacked up against those institutional interests, the poor and disadvantaged communities who make up most criminal defendants don't have much of a chance."

Despite the challenges, reformists are pursuing a range of strategies to fix the system. One of them is the Criminal Justice Agency itself, which is running a pilot project in Queens to take defendants for whom bail would otherwise be set and instead free them on supervised release. These defendants don't have to post bail, but they do have to check in regularly with CJA staff members, who in turn help set them up with social services and remind them when their court date is coming up. The program is less expensive than pre-trial detention, and so far, its participants have a better rate of returning to court than the city average. The CJA's McElroy is optimistic that the city will eventually expand the pilot program, but just when that might happen remains unclear.

The Bronx Defenders took a more aggressively experimental tack several years ago when, with little fanfare, they quietly spun off a nonprofit called the Bronx Freedom Fund.

After raising around $200,000, the fund began doing something at once simple and completely revolutionary: It bailed people out. When lawyers at the Bronx Defenders took on a client who couldn't make bail but wasn't considered a flight risk and wasn't charged with anything more serious than a misdemeanor or a nonviolent felony, they would refer him to Zoe Towns, the fund's only employee. If the defendant met the criteria, Towns would go down to the courthouse with a certified check and bail him out. When the defendant returned to court for his next hearing and the bail came back, it would be rolled back into the fund to help someone else.

The fund kept a low profile, in large part because its advisers worried that if judges and prosecutors knew that it existed, they might inflate bails to keep people in jail. But over the course of more than a year, the fund bailed out nearly 200 people. That was a tremendous boon for the defendants who could go home rather than stay locked up, but the project also generated some remarkable data.

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