Making Bail Better

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

A couple of months later, it happened. In the last hours of this year's session, the revised bill again sailed through the senate and the assembly and was signed into law on July 18. It will go into effect this month.

With the legislation passed, the Bronx Defenders are now gearing up to revive the Freedom Fund. They still have almost all of the money they started the pilot project with, more than $100,000.

"The first time around, 97 percent of our clients came back to court to fight their cases, so all that bail we posted came back to us," Feige says. "That's what's so great about this project. You might say $100,000 is a tiny amount of money, but when you're talking about $500 getting people out of jail, and if you turn that over two or three times a year, that's a lot of people getting out for a small amount of money."

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.

That's not to say the Bronx Defenders don't want to see the fund grow, of course. And they still need to raise money for administration of the fund.

"We need to pay the license fee, fill out the paperwork, and find about $70,000 to pay the salary for someone to administer the fund for the first couple of years, and we're in business," Feige says.

The Bronx Defenders aren't the only ones making use of the new legislation. Across town, Brooklyn Defender Services is preparing to launch its own bail fund. Attorney Josh Saunders first encountered the concept of a bail fund during a stint at the Bronx Defenders, when he represented one of the last defendants to benefit from the old Freedom Fund.

"We'd been talking about doing something like that in Brooklyn for a while, but after the ruling in the Bronx, we had to think of ways to do it that would be legal. We were probably going to have to be licensed as bail bondsmen, which is expensive and complicated," Saunders says. "With the new legislation, it's going to be much easier."

Of course, coming up with the cash for bail is just the first hurdle many defendants have to overcome before they can fight their case.

"Even once a poor person makes bail, they still face problems every time they have to come back to court," says Moira Meltzer-Cohen, a recent law graduate who helped lead the Bail Out New York planning. "They have to get off work, and they may not have a job that gives them time off; they may need child care, and they may not have access to that; they need clothes to come to court in. There are a million ways that fighting a case is just harder if you're poor than if you're wealthy or middle-class."

With that in mind, Meltzer-Cohen has incorporated the For All Justice Fund. Although it's still in its nascent stages and in need of money, Meltzer-Cohen sees the fund as a suite of services that can help even the playing field for indigent defendants once they've made bail. "It certainly doesn't make sense for us to be telling defendants what we think they need," she says. "We're going to start by meeting with community groups, activists, churches, and service providers to see what's needed and how we can help people get it."

Charitable bail funds no longer face the legal obstacles they once did in New York, but their impact is uncertain. It will be months before any of these funds are up and running, and years before any of them have an appreciable track record.

Still, there's reason to believe that the political climate around bail might be beginning to change. In 2010, Human Rights Watch published a scorching assessment of the administration of bail in New York, concluding, "Although it is routine, happens every day, and has gone on for decades, confining people in jail simply because they are too poor to post bail when charged with a low-level offense is a serious inequity in the city's criminal-justice system. Poverty should not be an impediment to pretrial freedom."

The Criminal Justice Agency, which tracks defendants and issues bail recommendations for the city, has published a series of compelling reports in the past few years statistically documenting the injustice of bail administration in the city and is running a pilot program in Queens that is so far successfully reducing the number of pretrial detentions.

Nationally, groups like the Justice Policy Institute and the Pretrial Justice Institute are hammering on the need for bail reform. The New Jim Crow, a book by legal scholar Michelle Alexander published in 2010, has also helped focus the general public's attention on the stunningly racist outcomes produced by the criminal-justice system.

This spring, Alexander published a widely discussed op-ed in The New York Times describing a conversation with a friend who asked, "What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn't we bring the whole system to a halt just like that?"

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