Making Bail Better

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

"The financial argument made sense to me as a fiscal conservative," Boyle says. "The justice side of it made sense to me as a human."

What's the catch? Boyle asked Feige.

"There is no catch," Feige told him. "The catch is that judges and prosecutors aren't going to like it, because it feels like it undercuts their authority, and in an overburdened system, they want to coerce pleas."

After a judge ruled the Bronx Freedom Fund illegal, attorney David Feige set out to change the law.
Courtesy Tom Starkweather:;
After a judge ruled the Bronx Freedom Fund illegal, attorney David Feige set out to change the law.
Assemblyman Philip Boyle helped sell the bill to Republicans.
Wikipedia Creative Commons
Assemblyman Philip Boyle helped sell the bill to Republicans.

Boyle did some research of his own, then called Feige back. "Let's do this," he said. "Let's start writing."

The bill they came up with was relatively simple—a set of amendments to the relevant statute that recognized a new category of charitable bail-paying institutions, exempt from the requirements commercial bail bondsmen must meet. They began shopping it around.

In the Democrat-dominated assembly, Boyle partnered with veteran Democrat Jeffrion Aubry, the chairman of the Corrections Committee and an influential member of the Ways and Means and Rules committees. Over the six-month 2011 legislative session, Aubry smoothed the way among Democrats, securing commitments of support, while Boyle worked his side of the aisle, selling fellow Republicans on the bill's cost-saving virtues.

"As with any bill, when you're speaking to an audience, you want to speak to them in terms they'll appreciate," Boyle says.

At the same time, Bronx state senator Gustavo Rivera was handling the bill's progress through the other chamber.

"This was an issue that affects my constituents directly," Rivera says. "It was an easy choice to sponsor it."

The bill encountered little organized opposition. The commercial bail bondsmen lobby didn't like it on principle, but the bill was focused on low-dollar bails that most bail-bonds outfits won't touch anyway, so the resistance was minimal.

Even so, Albany being Albany, the bill languished until June 20, the last day of the 2011 session, when, at the eleventh hour, it sailed through, passing both chambers unanimously.

"We were jubilant," Feige says. "We thought: 'This is fantastic! The fund is back in business!'"

Then, on December 12, with little warning, Governor Andrew Cuomo vetoed the legislation. Feige was furious: "Whoever it was who opposed this legislation held their powder through the legislative process and spent it on the governor." Cuomo's office did not respond to requests for comment for this story.

In a statement attached to the veto, Cuomo praised the bill's "laudable goal" but expressed concern that it lacked the necessary oversight and regulation. Rumors coming back to the sponsors suggested that the governor was worried that if the bill passed, organized crime might use bail funds to get mobsters out of jail—an objection that still baffles Feige. "What does the mob need a charitable bail fund for?" he asks. "They've got plenty of cash!"

But with Cuomo leaving the door open to signing a modified version in the next session, the bill's sponsors began negotiating with the governor's office. Cuomo wanted to keep a tight rein on any bail funds by making their licensure conditional on the approval of the state's superintendent of the Department of Financial Services.

He also wanted to cap the amount of bail a charitable fund could pay for a single defendant at $1,500. That wasn't a terrible restriction in New York City, where many people targeted by the bill—people facing nonviolent misdemeanor charges—see bails set below that amount. But elsewhere in the state is a different story.

"Criminal justice is a very local thing," Feige says. "Bails upstate are through the roof. It's a different culture. You see people regularly held on $3,000, $4,000, $10,000 bail on piddly little cases, trespassing and marijuana."

Feige wanted a $5,000 cap, but the governor was adamant. Eventually, Feige's team negotiated it up to $2,000. Cuomo forced other concessions, as well. In the new bill, charitable bail funds are restricted to serving a single county, or, in the case of a metropolis, up to five adjoining counties. That will make it harder to extend the benefits of charitable bail funds to upstate rural counties.

"The veto process really gutted some parts of the bill in ways that ultimately were acceptable, but nonetheless substantially undermined it," Feige says.

Meanwhile, Feige discovered a potential problem of a different sort. Just as the reformulated bill was making its way through the new legislative session, a group of legal workers and activists associated with Occupy Wall Street was laying plans for its own bail fund, called Bail Out New York.

The organizers envisioned a fund similar to the Bronx Freedom Fund but operating in a broader context, across New York City. They planned to mark the fund's debut on May Day, in concert with the massive street protests Occupy was organizing.

In a tense last-minute meeting, Feige pleaded with the young activists to call their fund off. He admired their initiative and shared their goals, he told them, but if the words "bail fund" were to show up in the press in the context of a radical protest movement already thoroughly smeared by the media, he worried his stealth legislative campaign and all of the delicate dancing with conservative legislators might go up in smoke.

It was an awkward and unfamiliar position for Feige—his self-image is more like the fiery youth storming the barricades than the older, more cautious figure urging restraint in the interest of incremental legislative reform. Even so, he was persuasive. The activists reluctantly agreed to call off Bail Out New York until Feige's legislation was safely passed.

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