Bail is Busted: How Jail Really Works
Lauren DiGioia's face was stony and impassive beneath bright blue hair as she was brought into a courtroom in handcuffs on March 18.
At 2:30 the previous afternoon, DiGioia, 27, had become the first person arrested by the New York City Police Department during Occupy Wall Street's six-month anniversary at Zuccotti Park. DiGioia was taken in for dancing on the public sidewalk outside the park after police told her not to.
"Four police officers forced me to my knees," DiGioia recalls. "They put the zip cuffs on really tight, and then they threw me in the paddy wagon."
DiGioia was initially taken to the Seventh Precinct, but because she was being charged with resisting arrest along with disorderly conduct, she was moved to central booking and thrown into a cell holding about 35 other women. Charismatic and garrulous, DiGioia was soon talking with the other inmates.
"A lot of the women I met that night were in on really minor charges," she says. "Marijuana, petty theft, getting in a fight in a nightclub. They were sort of shocked that I'd been arrested for dancing on the sidewalk, but it didn't surprise them because they see stuff like that in their marginalized neighborhoods—people stop-and-frisked and profiled for the way they look."
After a night and the better part of a day in jail, DiGioia looked tired in court as the assistant district attorney read out the charges. Her lawyer said she didn't wish to make a plea, and the judge ordered her released without bail until her next hearing.
"One coming out!" a court officer shouted as another unlocked her handcuffs and pointed her through the gate to the court gallery.
DiGioia cleared the swinging doors, and a dozen fellow protesters sitting on benches in the gallery stood and moved, arms outstretched, toward her. As DiGioia approached them, her composure cracked and collapsed, and she broke down, doubling over in tears and falling into their arms.
The group moved quickly to the hallway outside of the court, where DiGioia tried to explain to her comrades that she was fine.
"I'm OK," she insisted. "I'm OK. It's just . . . the other women. I met some amazing women in my cell last night, and I just know they're not going to have anyone waiting for them when they're arraigned. They're not going to have a lawyer. They're not going to have anyone posting bail. They're not going to have anyone watching. It's not right."
A few weeks later, DiGioia was more composed while describing her experience but clearly still affected. "It was just really sad to see the difference," she says. "We were all there together at first, but then because I had a lawyer and access to bail and they didn't, we went down these separate tracks. I watched a lot of women get left behind, and it broke my heart."
As the Occupy Wall Street movement has introduced a new young generation of mostly white, mostly middle-class activists to civil disobedience, arrest, jail, and the inner workings of the criminal-justice system, they're learning firsthand what New York's poor, black, and immigrant communities have known for years: The criminal-justice system is rotten.
Stop-and-frisk policing might be the highly visible doorway into the system, filling jail cells and court dockets with poor black and brown New Yorkers on mostly minor charges. But it's in court—and specifically at arraignment—where the full discriminatory weight of the justice apparatus is brought to bear.
It is a central tenet of American justice that as these arrests enter the court system, people are innocent until they are proved guilty. But the open secret of New York's criminal courts is that there simply aren't enough judges, prosecutors, and hours in the day to give each of these defendants a fair chance to prove their innocence, to challenge the evidence against them, and to mount a defense.
New York's criminal courts are underfunded and overwhelmed with cases—more and more of them misdemeanors and minor offenses as the NYPD pursues its so-called broken-window strategy.
If even a fraction of those presumed innocent fought their cases in court, the system would grind to a halt. To keep things moving, judges and prosecutors need defendants to plead guilty to something as early in the process as possible. And the single most powerful tool to extract a guilty plea is the threat of bail.
In the state of New York, bail can only legitimately be set for one reason: to ensure that a defendant will return to court for his or her next hearing. But everyone who works in criminal justice in New York City knows that's not what's going on at all.
For no particular reason other than institutional habit and a fondness for round numbers, bail in New York is generally set in increments of $250 and, more commonly, $500. In 40 percent of cases where bail was set in 2010, it was $1,000 or less.
Some people wouldn't have much trouble coming up with $1,000. If they don't have it themselves, they have friends, a family, and a community that could scrape it together. But those aren't the people who make up the overwhelming majority of criminal defendants.
In 2010, only 17 percent of those held on $1,000 or less made bail at arraignment. The rest stayed locked up. Some posted bail later, but half of them remained in a jail cell until their cases were disposed of. The figure is almost as bad for people held on $500 or less: Forty-four percent of them—all presumed innocent, remember—stayed in jail until their case was decided, simply because they couldn't make bail.
Jail is an unpleasant place to be. But avoiding a pre-trial stint at Rikers is only one reason many defendants would rather plead guilty to a lesser charge and walk out of court with nothing more than a criminal record and a sentence for time served.
"These people have families," says Robin Steinberg, executive director of the Bronx Defenders, a nonprofit that offers legal services in the Bronx. "They have children they need to care for. They have jobs that they're going to lose if they don't show up for work. It doesn't matter whether they're innocent—there's a whole range of subsequent damage to their lives and the lives of people close to them if they're held on bail."
If you're not in this country legally, there are added stakes: Pleading out at arraignment is your last best hope of avoiding deportation. Once at Rikers, your immigration status is almost certain to be screened and passed on to Immigration and Customs agents.
Faced with such high stakes, it's no wonder that so many defendants cave when prosecutors mention bail.
"It happens all the time," Steinberg says. "We see clients at arraignment not wanting to plea, saying they want to fight their case. Then they hear the bail that the prosecutor is going to ask for, and they'll turn to their defense lawyer and say, 'I'll take the plea.'"
This use of bail has been an integral part of the justice system for decades. But recently, there has been a renewed push to return bail to its statutory purpose and make sure that no one stays behind bars just for being poor. Some, such as the Bronx Defenders, are pursuing reform through education and impact litigation. Others, like Occupy Wall Street affiliates, are contemplating direct actions that will test the courts' commitment to justice.
In the city that never sleeps, there are courtrooms processing arraignments and setting bails every day of the week, at every hour of the day and night. The arraignment is the moment when an arrestee becomes a defendant, when he's handed off from Jerry Orbach's realm of Order to Sam Waterston's world of Law. Interestingly, most court procedurals on film and television spend little time on the arraignment, if they show it at all. As a result, most people have little understanding of what actually happens at an arraignment. And that's too bad, Steinberg says, because "the arraignment is actually the most important proceeding in the entire process. What happens in the arraignment determines everything that comes afterward."
Spending a day or a night in an arraignment court is as disturbing as it is edifying. Prisoners are brought into the courtroom and processed in a matter of minutes. A judge can easily decide the fates of more than a dozen defendants in an hour. Here's how the process usually goes:
Recently arrested people are brought from lockup and wait outside the courtroom for their case to be called. This is the time when most of them first meet the lawyer assigned to their cases, a harried public defender with a stack of folders more than a foot high on her table. They talk for a few minutes, and then the court officer calls the case number. The prosecutor may make an offer for a plea bargain. If he doesn't or if it's refused, the court turns its attention to the question of bail.
The defense lawyer, the assistant district attorney, and the judge all have the same paperwork: the current charges, the defendant's rap sheet, and a bail recommendation from the Criminal Justice Agency, a nonprofit that interviews everyone before he or she is arraigned.
In making its bail recommendations, the CJA is essentially evaluating a defendant's flight risk. If a defendant is released, will he skip out on the next hearing and go on the lam? To make those recommendations, the agency asks six questions, meant to ascertain his ties to the community and his priors, of every defendant. Based on that information, the agency assigns each defendant a score that ranges from -12 to 12 and makes its best guess for the court. In roughly a third of cases, the CJA recommends that defendants be released without bail on their own recognizance. In around half of the cases, it recommends against release on own recognizance (ROR). About a fifth of the time, it classifies a defendant as a moderate risk and recommends that bail be set.
But the CJA's recommendation is hardly the final word on whether bail will be set for a defendant. According to the agency's own data, the most influential factor in whether bail is set and in what amount is what the prosecutor asks for. If prosecutors ask for a high bail, defendants are unlikely to be ROR'd, and the judge will probably set the bail high. What the defense says matters much less.
The law sets out a number of factors that may be considered when determining if someone is a flight risk: character and reputation; employment; ties to the community; criminal record; whether there are prior missed court appearances; the strength of the evidence; and how serious the sentence might be in a finding of guilt.
Perhaps citing some of these factors to support their arguments, the prosecutor and the defense attorney each make a suggestion to the judge. Sometimes other factors creep in, too. Last month, prosecutors asked for bail for defendants because they hadn't submitted to the NYPD's optional iris scans.
After hearing from both sides, the judge schedules the next appearance and announces whether bail will be set. The judge isn't required to explain his or her reasoning, and most don't.
Nestled in a warren of offices on Duane Street, across Foley Square from the city's courts, is the untidy desk of Jerome McElroy, the director of the Criminal Justice Agency.
McElroy is avuncular and unbelievably talkative—his wall bears a fake diploma his daughters made for him that is issued by the "University of Loquacity." And McElroy has a lot to talk about: His organization is sitting on the most massive, comprehensive database of criminal-justice statistics you've never heard of, and the picture that data paints isn't pretty.
Getting good information from the criminal-justice system isn't always easy. The NYPD is notorious for its opacity, for stalling Freedom of Information requests, and for finessing its own statistics. But if you want a vivid picture of what happens to New Yorkers after they're arrested, just ask McElroy.
For 35 years, the CJA has held a city contract to screen every single person being held for criminal arraignment in New York City, interview them, and make a recommendation to the court about setting bail.
That means the CJA has information on every single one of the 300,000 arraignments made in criminal court each year, data all the more valuable because the agency also tracks those cases through the system to their final disposition.
Here are some of the things the data from 2010 show: Eighty-four percent of criminal defendants were male; 43 percent had full-time employment or were in school full-time; half of them were black; and another third were Hispanic.
At arraignment, about half of the cases are disposed of. In those cases, more than half of the defendants pleaded guilty, with most of the rest either being dismissed or getting an adjournment in contemplation of dismissal, in which the case goes away as long as the defendant stays out of trouble for a set period of time.
In the cases that aren't resolved at arraignment, a tiny handful of defendants deemed especially risky are remanded without bail. Two-thirds of defendants are released on their own recognizance with no bail set while they await their next hearing. And the remaining third have some bail set. The percentage of cases in which bail is set is small, but what it adds up to is this: In 2010, more than 8,000 people had bail set at $1,000 or less and stayed in jail for the days or weeks until their case was resolved simply because they didn't have the money to get out.
Also, the data show that being stuck in a cell has a statistically significant effect on the outcome of your case. A CJA analysis found that 51 percent of those released at arraignment on non-felony charges were ultimately convicted. For those who stayed in jail as their case proceeded, the conviction rate shot up to 78 percent. Those who stayed in jail all the way until their cases were resolved were convicted 92 percent of the time.
"It's like a law of physics," says David Feige, author of Indefensible: One Lawyer's Journey Into the Inferno of American Justice. "A person incarcerated tends to stay incarcerated. A person at liberty tends to stay at liberty. When you're out, you're negotiating from a position of power; you're much less likely to take a plea that puts you back in jail. When you're in, it's just the opposite."
Keeping people in jail before their trials isn't cheap. When Human Rights Watch investigated the use of bail several years ago, it found there were 16,649 non-felony defendants in jail because they couldn't post a bail of $1,000 or less. With an average stay of 15.7 days and a daily cost of $161, the investigators calculated that those detentions cost taxpayers more than $42 million.
There's one statistic the CJA doesn't capture because there's no record of it anywhere: how often prosecutors threaten bail but it isn't set because a defendant opts instead to take a plea. What we do know, though, is that the overwhelming majority of convictions in misdemeanor cases—99.6 percent—come not because the defendant was found guilty at trial but rather because they pleaded guilty.
"Bail is the tool that gets those results," Feige says. "It's not the legal purpose of bail, but to put it in pharmaceutical terms, it's an off-label use."
If the bail regime is against New York law, unjustifiably expensive, and patently unfair, why does it persist?
"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.'"
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.
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.
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.
From early on, Occupiers have organized jail support—teams of people ready with food, cigarettes, MetroCards, and emotional care who wait outside the precincts or sit in arraignment court.
"Being in jail is a form of trauma," says Moira Meltzer-Cohen, a City University of New York law student who works with Occupy Wall Street's Activist Legal Working Group. "You're stripped of your freedom, and you're often not treated very nicely. It's important for the Occupiers to recognize that their experience probably doesn't begin to compare to what more vulnerable people experience, but it's still traumatic, and it's hard to put a value on having friendly faces when you get out."
People arrested in the course of Occupy actions also have even more tangible advantages. For one, they have legal representation from the National Lawyers Guild, rather than having to rely on overworked public defenders. For another, like the members of many social-protest movements before them, they bail each other out.
Occupy Wall Street's decision-making body, the New York General Assembly, has allocated thousands of dollars toward bail and developed a smooth-running system for making sure protesters never have to languish in a cell for want of cash.
Most protesters are let off with a desk-appearance ticket or are released at arraignment on their own recognizance. But in some cases, the judge sets bail, and when that happens, a member of the movement's Accounting Working Group is on hand with cash at the ready.
It's a system that has worked well for the Occupiers, who are then free to fight their cases from a position of freedom.
"I can't tell you how many Occupy protesters I've spoken to who have told me a story about their time in jail, talking with other people who are in there for something stupid like a stop-and-frisk arrest or something, and how much that stays with them," says Matt McCoy, a 26-year-old who has been involved with the movement since its first day. "For a lot of us, that arrest isn't going to wreck our lives, and that's not necessarily true for the other people in there."
That uncomfortable awareness percolated among Occupiers for months, and as the movement began its planning for a range of May Day actions, some of them decided to do something about it. Occupy had already spun off numerous projects targeted at specific problems, including one that addressed banks' criminal responsibility for the foreclosure crisis by taking over foreclosed homes in East New York and installing homeless families in them.
McCoy, Meltzer-Cohen, and half a dozen others saw an opportunity to do something similar for the criminal-justice system, to call attention to the way bail is used to force guilty pleas and to keep people locked up for no other crime than their poverty. It would be a way for Occupiers to reach beyond their movement.
In its early meetings, the group, calling itself Bail Out New York, contemplated an organized effort to post cash bail for as many non-Occupy-affiliated criminal defendants as it could afford to. There were some legal problems with that strategy, though, so now they're contemplating alternatives. Among them is a mass action building on the Bronx Defenders' recent legal victory.
One of the little-used options for bail allows for someone else to stand as surety for a defendant, putting no money down up front but pledging to pay the full amount if the defendant misses a court date.
"One of the options we're looking at is getting a lot of people into an arraignment court and one by one having them stand up for defendants and say, 'Judge, if you'll set an unsecured bond, I'll stand surety,'" Meltzer-Cohen says. "Either the judges would go with it, which would be new and great, or they'd be on record refusing it, basically saying, 'We'd rather keep this person locked up than let him out on a legally permissible form of bail.'"
Bail Out New York is still working through some obstacles to this plan—finding many people willing to put their bank accounts on the line for $1,000 for a stranger might be more easily said than done—but the group is determined to do something.
"This is one of the most destructive, discriminatory parts of the criminal-justice system," McCoy says. "It ruins individual lives and whole communities. And we're at a moment where there's a real potential for change. We just have to figure out the right places to push."
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