Let's Get Smart on Bail

Recently, as part of the quest to reform the American criminal justice system, more focus has been placed on the wide range of problems resulting from mass incarceration. Books like The New Jim Crow and documentaries like 13 address the severely negative effects of minorities and the poor, and, in turn, our entire society. One area of the criminal justice system directly affecting jail population is bail. According to for NY Chief Judge Lippmann in 2015, “Nearly 50,000 defendants are jailed each year in New York City because they cannot make bail. Almost 90 percent of those for whom bail is imposed do not make bail at arraignment, and over half of those defendants remain in jail for the entire duration of their case ─ from arraignment to disposition ─ without ever being released.” For many criminal defendants, bail plays a critical role in their life, and in their case – and for too many, obstacles to making bail cause unnecessary incarceration, exacerbating the already-existing problems caused by mass incarceration.

Shortly after one’s arrest, a judge can impose a bail that leads to incarceration before any evidence has been evaluated or any verdict rendered. In other words, a judge can incarcerate defendants unless certain bail conditions – imposed at the discretion of the judge – are met. And if such a defendant is unable to post bail, they remain incarcerated until the case is resolved.

In its purest sense, the reason for setting bail is twofold: first, to reasonably ensure that the person returns to court when directed, and second, to protect society, if the defendant poses a danger to the community. Bail is not, however, punitive. Unlike a sentence, bail is not meant to punish someone for the crimes charged.

Historically in New York, however, excessive bail became perfunctory, overused, and disproportionate to the nature of the crime. In my own experience, Judges imposed high monetary bail as a routine matter, without considering the far-reaching effects of effectively incarcerating someone unnecessarily. Even defendants charged with non-violent crimes, such as those involving street sales of drugs or larceny, or those who had every intention to return to court and who posed no danger to the community, had bail set at often unattainable amounts.

To make matters worse, until recently, Judges in New York utilized very limited bail options: cash or insurance company bail bond. The defendant had the option. If the cash option was chosen, all the cash must be put up. If a client was unable to raise the cash, they could hire a bail-bondsman, who, for a non-refundable fee (as high as 10% of the bond amount) and collateral, would post the bail. If a defendant did not have the fee or the collateral, no bond.

Clearly, the poor defendant fares the worst in this system. Defendants charged with non-violent crimes, with no intention to flee, but are nevertheless unable to raise the funds needed to satisfy the very limited options of a cash or bond bail, stay in jail. The result: their life derailed. A defendant unfairly incarcerated on bail may be in school, have a job, in the middle of drug treatment, be mentally ill, or, susceptible to bullying or appear vulnerable among other more seasoned inmates. Any progress the defendant was making, or could make with their life, despite the new arrest, are set back considerably. This affects not only the defendant, but all of us.

Fortunately, with some basic changes in the bail system, coupled with altering the way we look at bail, this broken system can be fixed, and the fallout avoided. There are signs that legislatures and courts are doing just that. In the past few years, New York has gotten smarter on bail. For instance, very few Judges are setting bail on misdemeanor cases. In addition, in cases where a defendant is held in on bail for felonies, the court will conduct regular and periodic review of the speed of the case and make determinations about whether the bail decision is still viable.

Also, Judges now have the option to place a defendant on electronic monitoring and a curfew. This can produce the best of both worlds: courts can ensure a defendant returns for scheduled appearances and does not flee, while the defendant can be released and live their life – attending school, employment, treatment – almost as they were before their arrest.

The New York criminal justice system is making progress on bail. But there is more work to do. New York would be wise to take a lesson from the federal criminal justice system, not commonly known as a forum favorable to defendants. The federal bail statute provides numerous bail options for a defendant. In particular, very often defendants who are charged with non-violent federal crimes are released from jail as long as they provide a number of friends and family to sign an – unsecured - bond on their behalf. No money changes hands; instead a signatures suffice. Home detention, sometimes using property as security, and strict pre-trial supervision are other common federal practices that could work in the state system as well. With added resources and funds, these options can work in New York State courts.

A successful, more pragmatic bail system, decreases the prison population, helps assure a defendant’s return to court, and seeks to protect any danger to society. Such a system also bridges the divide between criminal conviction and a successful return to being a productive member of society. Thankfully, bail reforms are taking hold. These reforms render the imposition of bail less restrictive, more progressive, and more humane. We are getting smart on bail – a development that is good for us all.

Please follow me Twitter @sgbrill, on my website sbcriminallawyers.com, or Facebook. I welcome any emails as well at steven.brill@sullivanbrill.com.

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