Making Bail Better
When Judge Ralph Fabrizio saw William Miranda, free of handcuffs and dressed in street clothes, sitting in his Bronx courtroom, he was surprised.
Three days earlier, on February 24, 2009, Miranda had been up before Fabrizio for arraignment on two misdemeanor assault charges. Fabrizio had set a substantial bail, $1,500 for each charge, certainly more than Miranda could come up with. So why hadn't Miranda spent the time between his arraignment and this hearing in jail?
When Fabrizio asked, he learned that Miranda's bail had not been paid by himself or by a friend or family member, but by an organization known as the Bronx Freedom Fund.
The judge didn't like it. Over the objection of the Bronx Defenders, which was representing Miranda, he began an investigation into the Bronx Freedom Fund and its activities. What he discovered was one of the most remarkable experiments in criminal justice in recent years, a pilot program for a growing movement that might be on the verge of changing the face of criminal justice in New York.
For more than a year and a half, the Bronx Defenders had been quietly running a small fund that paid the bail for people charged with misdemeanors who otherwise would have spent the days and weeks before their trials in jail for a single reason: They were too poor to get out.
These people insisted they were innocent, and in the eyes of the law, they were: They hadn't yet enjoyed their right to a trial. But while more affluent defendants could put up the money and go home free to prepare for their trials, these defendants' poverty condemned them to a cell in Rikers before they even had a chance to argue their case.
The fund had a few basic conditions: Recipients had to be charged with misdemeanors or nonviolent felonies; they had to be assigned bail of no more than $1,500; they had to be unable to pay by themselves; and they couldn't be a significant flight risk.
The fund was conceived and created by the Bronx Defenders but administered separately by a former employee and incorporated as an independent charitable 501(c)(3) organization. From November 2007 until early 2009, the fund provided bail to nearly 200 people. Without it, these people would have faced a stark choice: Either accept a prosecutor's offer to plead guilty, even if they were innocent, and likely be released with little or no jail time but a lifelong criminal record, or spend the days until their trial in jail, away from their children, their jobs, their bills, and their lives, all for want of a few hundred dollars.
Using the question of whether Miranda's bail was legitimately posted to dig deep into the operations of the Bronx Freedom Fund, Fabrizio continued his investigation. The fund submitted into evidence letters of former clients, people whom the fund had bailed out. In one letter, a girl thanked the fund for posting her bail so she could continue to attend high school while her case was pending.
In another, a man wrote: "I was not able to make the bail because of my financial problems. The Bronx Freedom Fund stepped in and bailed me out of jail. . . . If it was not for the Freedom Fund, I might have been held by immigration and possibly deported."
A third writer simply thanked the fund for posting his bail, because it allowed him to be with his family as he fought his case.
The judge was unimpressed. Although the Freedom Fund took no money from its clients and made no money through its operation, Fabrizio determined that it was a business. "The Bronx Freedom Fund is a 'bail bond business' and an 'insurance business,'" he wrote in his final decision on June 22.
Fabrizio ruled that the fund was illegal. By posting bail for indigent defendants like Miranda so they could fight their cases from their homes rather than from a jail cell, the fund's administrator had broken the law.
In a 23-page decision, Fabrizio found that the Freedom Fund had effectively been running an uninsured bail-bond business. Because bail is intended to ensure that defendants return to court, bail is a type of insurance, Fabrizio wrote, and subject to state insurance law. If the fund wanted to bail out defendants lawfully, it would need to get properly licensed and certified, and, because of restrictions under the existing law, it would have to limit itself to posting bail only twice a month.
Judge Fabrizio's ruling against the Freedom Fund was a major setback for the Bronx Defenders. The program was a centerpiece of its fight against one of the most glaringly unfair and discriminatory aspects of the criminal-justice system.
In New York City alone, thousands of people every year spend days and weeks in jail without ever having stood trial or having had a chance to argue their innocence, simply because they are too poor to afford bail.
As the Voice reported in our April story "Bail Is Busted," the use of bail in today's criminal courts has evolved far beyond its official narrow purpose. By statute, the only allowable reason to set bail on a defendant at arraignment is if there is reason to doubt that he or she will return to court for the next hearing. But in the hands of prosecutors, bail has become a powerful tool to force defendants' hands.
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.
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.
"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."
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.
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."
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?"
It's a powerful notion: The same courts that jail thousands of New Yorkers a year for the crime of poverty depend for their smooth operation on defendants' continuing to plead guilty. Could these new bail funds empower and embolden enough defendants to fight their cases that the criminal courts grind to a stop?
That's not what the change is going to look like, Feige says. "By their nature, these are crappy cases," he says. "If they're not getting pleas, they get dismissed."
He points to the announcement two weeks ago that the Bronx District Attorney's office had told police it would stop prosecuting public-housing trespassing cases without first interviewing the arresting officers, after concluding that contrary to officers' written statements, many of those arrested were innocent.
"It's not like the system grinds to a halt because of that," Feige says. "It's just that there's now some balance and equity in the system. Prosecutors, instead of merely taking advantage of the leverage afforded them because the person they're prosecuting is poor, actually evaluate their cases, realize which ones are crap, and get rid of them. By the way, that's how the system ought to work."
Perhaps the new bail funds will eventually have a similar effect, empowering so many defendants to fight and win their cases that the system backs up enough to change the policing that begins it all.
"If courts had to deal with even a 5 percent increase in people not taking pleas and getting acquitted, eventually the judge is going to say to the D.A., 'Stop wasting my time,'" Meltzer-Cohen says. "And the D.A. is going to say to the police, 'Stop wasting my time.' Maybe that's an optimistic scenario, but it's possible. Freeing people from unfair bail helps create that pressure."
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