Bail is Busted: How Jail Really Works

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

First, the fund's numbers gave the lie to the assumption that defendants won't return to court if they don't have a personal relationship with the people posting bail for them. Ninety-three percent of the fund's clients showed up for every single one of their subsequent court hearings—a return rate higher than that of defendants who post their own bail or get commercial bail bonds.

But the really shocking revelation of the Freedom Fund experiment was this: More than half of the fund's clients eventually saw their cases either completely dismissed or knocked down to some noncriminal disposition. Not a single one ever went back to jail on the charges for which they were bailed out.

Without access to a bail fund, defendants in similar positions pleaded guilty to criminal charges 95 percent of the time. The fund's numbers made wincingly clear what everyone had already vaguely known: The current bail system has the direct effect of slapping criminal convictions on poor people who would otherwise win their cases.

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.

The experiment didn't last. Eventually, a judge discovered the existence of the program and launched an investigation, ultimately ruling that the fund was illegal because it was effectively operating as an uninsured bail-bond company.

The fund was shuttered, but the Bronx Defenders didn't give up. Instead, they launched an education initiative, training judges and lawyers about aspects of bail law that are almost universally ignored. Almost without exception, New York judges only set two kinds of bail at arraignment: straight cash or commercial bail bond. But New York statute actually lays out eight different forms of acceptable bail.

Partially secured bonds, for example, let a defendant or someone else promise to pay the full bail if they miss their next court date while only having to put up a tenth of the full amount on the spot. Unsecured bonds let a defendant or someone else assume responsibility for the full amount without having to front anything.

"Nobody uses these other forms of bail," says Steinberg of the Bronx Defenders. "And what we often find is that, even with judges, they didn't even know these options exist."

But education only goes so far. In 2009, a judge in one of the Bronx Defenders' cases set a cash bail of $20,000 and refused to set any alternative bail, including a commercial bail bond. The defenders appealed and last month won a major victory: Judges have to set at least two forms of bail, the higher court ruled.

"Providing flexible bail alternatives to pre-trial detainees—who are presumptively innocent until proven guilty beyond a reasonable doubt—is consistent with the underlying purpose of [the law]," the Court of Appeals wrote in a decision known as McManus v. Horn.

"There's no excuse for a system that is relying on cash bail when criminal-procedure law allows so many other options," Steinberg says. "The McManus decision really opens up that conversation."

But the ruling isn't everything bail-reform advocates might dream of. In a sort of winking aside, the court reassures judges who might be nervous that providing bail alternatives will make it easier for defendants to go free: Fear not, the court writes, because the law allows judges to order "a second type of bail, that, in effect, may be virtually indistinguishable from the cash option." That is to say: Set cash bail at $20,000, set a partially secured appearance bond at $200,000, and either way, the defendant still has to come up with $20,000 to get out. It's hardly progress.

There's another serious limitation to the McManus ruling: Most judges will likely offer commercial bail bonds as their second option, since it's what they're most familiar with. But the market for commercial bail bonds doesn't really exist for $500 and $1,000 bails—bondsmen just can't make enough money on them to make it worth their while.

So for the poorest defendants most in need of bail reform, the McManus ruling might not do much at all.

"Our hope is that judges will use this decision to not only set two forms of bail but to also consider the other forms of bonds," says Marika Meis, the Bronx Defenders lawyer who litigated the McManus case. "But is there still a lot of work to be done? Absolutely."

While institutional advocates like the Bronx Defenders pursue their own reforms, there's pressure mounting from other corners for a more direct intervention.

Almost since its inception, the Occupy Wall Street movement has had its own tangles with the criminal-justice system, most dramatically when, two weeks into its existence, police arrested more than 700 people on the Brooklyn Bridge. In the six months since then, across more than 2,200 arrests, Occupiers have had further opportunity to see the system from the inside. Many activists have been arrested half a dozen times and spent many nights in lockup in Manhattan precinct houses or the Tombs, the Manhattan Detention Complex, once named for Bernie Kerik.

But Occupiers' experiences in jail are radically different from those of their cell mates. Most Occupiers are coming to jail from a position of privilege—they're white, they have some sort of education, and they come from a middle-class background. They also have the support of their movement, which takes many forms.

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