Making Bail Better

A new law opens the door to a more just criminal justice

Even for relatively low bail amounts—40 percent of bail amounts in New York were $1,000 or less in 2010—nearly half of defendants are unable to scrounge up the necessary funds, remaining in a jail cell until their case is resolved. That can last anywhere from days to weeks, but even at the low end, imprisonment carries consequences that vulnerable defendants can ill afford.

"As public defenders, a lot of our clients are just barely getting by," says Josh Saunders, a lawyer at Brooklyn Defender Services. "They have a job as a building super or a security guard or a home health aide, and spending even a couple of days in jail can cost them their jobs, the things that are holding their families together."

Faced with job loss, leaving their kids unattended and uncared for, and, in the case of undocumented immigrants, a referral to Immigration officials and likely deportation, many defendants up on minor charges choose instead to accept prosecutors' offer of a guilty plea. The plea gives them a criminal record that can make it difficult or impossible to find work and housing or qualify for a car loan, but it often means that they can walk out of court the same day with a sentence of time already served.

When the Bronx Defenders saw clients going to jail simply because they were poor, it started the Bronx Freedom Fund to bail them out.
Courtesy Bronx Defenders Facebook
When the Bronx Defenders saw clients going to jail simply because they were poor, it started the Bronx Freedom Fund to bail them out.
A judge in the Bronx shut down the Bronx Freedom Fund in 2009, but now it will soon be back.
Rafael Viñoly Architects
A judge in the Bronx shut down the Bronx Freedom Fund in 2009, but now it will soon be back.

For an overtaxed court system, the advantages are obvious: Rather than dragging out across endless motions and an actual trial, cases are disposed of quickly and efficiently. For prosecutors, the leverage of bail yields extremely high conviction rates. In New York, pleas are responsible for 99.6 percent of the convictions in misdemeanor cases.

When Judge Fabrizio shut down the Bronx Freedom Fund, he squashed one of the first significant efforts to even the scales, to give indigent defendants the same chance of fighting their case and proving their innocence that wealthier Americans have.

The Freedom Fund was shuttered—but not before it had served enough defendants to generate the most damning statistical indictment of the bail system yet: Without the bail fund, the sort of defendants it served pleaded guilty 95 percent of the time. Of the nearly 200 people bailed out by the Freedom Fund, not a single one went back to jail on the original charges. The evidence could not be clearer: Without access to bail, poor people who would otherwise go free were pleading guilty and filling jail cells.

Armed with that evidence, the Bronx Defenders resolved to keep going. "Honestly, part of my reaction was just a 'Screw you' to the judge," recalls David Feige, one of the architects of the fund. "It was, 'I'm not going to take this lying down, and dammit, I'm going to find a way to get this changed.' And at that point, literally the only thing we could do was change the law."

David Feige is the sort of person who takes up a lot of space. He's a big man with bushy eyebrows and a close-cropped dark beard. Even at his most casual and relaxed, he's a formidable personality. He's never at a loss for words and is always willing to argue a point, traits that served him well in his 15 years as a public defender.

Feige started his legal career with the Legal Aid Society, first in Washington, D.C., eventually in New York. In the mid 1990s, when a union dispute with Legal Aid led then-mayor Rudy Giuliani to open up public defender contracts to new outfits in order to weaken Legal Aid's negotiating position, Feige and his wife, Robin Steinberg, founded the Bronx Defenders. It was a controversial move. At the time, many public defenders viewed these new defender services as scabs, and more than a decade later, there's still ill will between the Bronx Defenders and some Legal Aid lawyers.

Steinberg still runs the Bronx Defenders, but in 2004, Feige moved on, first to write a well-reviewed book on his experience with the criminal-justice system, then to Hollywood, where with Steven Bochco he created the courtroom drama Raising the Bar. Feige still splits his time between New York and California, and it was his entertainment-industry connections that paved the way for his legislative crusade.

"I was at a friend's house one day, ranting about this ruling against the bail fund, and there's another guy there, a lobbyist," Feige recalls. "I'm telling him about it, and he's saying, 'That's outrageous!' Later, I called him up and said: 'Hey, I gotta get this law changed. Who do you know in New York?' He said: 'I'm a lobbyist. I know everybody.'"

Shrewdly, Feige's friend directed him to a seemingly unlikely first contact: Philip Boyle, a Republican assemblyman represent-ing part of Suffolk County on Long Island.

"I wasn't too familiar with the issue when David called me," Boyle remembers.

Feige laid out the case for him. "I said: 'Look, this is outrageous. People are pleading guilty every single day because they can't afford $500. They're sitting in jail over this, and it's coercive, and it's just wrong.'"

Feige told Boyle about the Bronx Freedom Fund and the statistics it generated. Appealing to Boyle's fiscal conservatism, he stressed how much all this unjust imprisonment was costing the state. A 2010 Human Rights Watch report calculated the cost of incarceration to New York taxpayers as $400 per inmate per day, and found that if all the misdemeanor defendants kept in jail because they couldn't make bail were instead released pending their trials, the state would save more than $42 million a year.

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