Legal Aid Chief Says Says Current Bail System Punishes New Yorkers Before They Even Have Their Day In Court

Steven Banks, The Legal Aid Society's Attorney-in-Chief, praised Chief Judge Jonathan Lippman's proposal to reform the bail system for low-income New Yorkers in the New York Daily News and the New York Law Journal and on WNYC. Banks told the Daily News that front-line Legal Aid lawyers "see a substantial number of clients who can’t pay bail amounts in the hundreds of dollars, let alone in the thousands of dollars.”

In an interview on WNYC, Banks said the current bail system punishes defendants before they are convicted of anything. “When people are behind the prison walls of Rikers, it wears them down and the main goal is to get out and sometimes the goal of getting out overwhelms the goal of vindication,” he told WNYC.

In the New York Law Journal, he said that the current system effectively keeps low-income people accused of low-level, non-violent offenses in jail because they cannot get bonds for relatively small amounts.

New York Daily News
Prosecutors and defense attorneys support judge's proposal to overhaul bail process in New York
By Glenn Blain
Wednesday February 6, 2013

ALBANY — An unusual alliance of prosecutors and defense attorneys emerged Wednesday to support a proposal by the state’s top judge to overhaul the bail process in New York.

The sweeping plan by Chief Judge Jonathan Lippman would make life tougher for violent criminals awaiting trial — and easier for poor defendants charged with minor offenses.

“At either end, we are not doing the right thing,” he told the Daily News. The current system “is not fair, not safe.”

Under the proposal, which Lippman will submit to the Legislature next week, judges for the first time would have to consider the danger a defendant poses to the public when making bail decisions.

New York is one of only four states that does not require public safety considerations in bail decisions. Currently, judges may only consider whether a person is a flight risk.

“We need a new vision of pretrial justice in this state and it should be based on an evidence-based program with good risk assessment,” Lippman said Wednesday.

The second prong of his proposal would make the bail system easier on poor, nonviolent offenders who often sit in jail for weeks because they can’t afford bail.

Critics say such poor defendants sometimes plead guilty to crimes they did not commit simply to get out of jail.

Lippman's plan would make judges consider the danger a defendant poses to the public as well as their flight risk when making bail decisions, and would make the bail system easier on poor, nonviolent offenders, who often plead guilty just to avoid jail time.

Lippman’s plan would create a “presumption of release” for nonviolent offenders unless it can be shown they are a flight risk or a threat to public safety. This would put the burden on prosecutors to prove that such defendants should be detained.

“The state pays hundreds of millions of dollars to keep these people in jail for no reason,” Lippman told The News.

Lippman’s plan, unveiled Tuesday in a State of the Judiciary speech, found support Wednesday on both sides of the legal aisle.

“Chief Judge Lippman has proposed reforms to the bail system which have the potential both to enhance public safety and increase fairness in our justice system,” Manhattan District Attorney Cyrus Vance Jr. said. “Those are two goals every prosecutor seeks.”

Steve Banks, chief lawyer for the Legal Aid Society, praised giving low-level offenders the presumption of release.

“We see a substantial number of clients who can’t pay bail amounts in the hundreds of dollars, let alone in the thousands of dollars,” Banks said.

Banks cited a study by the group Human Rights Watch of nonfelony defendants arraigned in the city in 2008. Of 19,137 defendants who had bail set at $1,000 or less, only 13% of them had the resources to make bail. Those defendants stayed in jail, on average, 16 days before trial.

But Lippman’s call for giving a break to low-level offenders found resistance Wednesday among some Republicans in the state Senate known for their law-and-order positions.

“The last thing I would want to be doing is giving get-out-of-jail cards,” said state Sen. Martin Golden (R-Brooklyn).

WNYC News Blog
Bail System Needs Overhaul: NY's Top Judge
Tuesday, February 05, 2013
By Tracie Hunte

Chief Judge Jonathon Lippman is calling for a major overhaul of New York’s bail statutes, which he calls unfair.

In his annual State of the Judiciary address Tuesday, Judge Lippman called on legislators to change the law so judges would be required to consider public safety when setting bail and there would be a presumption of release for nonviolent offenders.

“Most nonviolent indigent defendants are sitting in jail because they can't make as little as $500 bail. That does not promote public safety. It's not a wise use of taxpayer dollars,” said Nassau County District Attorney Kathleen Rice.

Lippman said nationally, the average cost of holding a defendant in jail is $19,000.

He also said the state should work to reform the bail bonds industry, which he said exerts too much influence over who is released from jail and who isn’t.

Lippman said since bail bondsmen rarely write bonds for defendants held on bails of $1,000 or less, “defendants charged with serious offenses are more likely to obtain bail bonds than those accused of minor crimes.”

Steven Banks with the Legal Aid of New York City said the current bail system punishes defendants before they're convicted of anything.

“When people are behind the prison walls of Rikers, it wears them down and the main goal is to get out and sometimes the goal of getting out overwhelms the goal of vindication,” Banks said.

Brooklyn District Attorney Charles Hynes applauds Lippman’s calls for putting more requirements on released defendants instead of bail. He says the state could save money by expanding the use of GPS to monitor defendants.

“It's plain foolish not to adopt a system of $20,000 for a GPS system when the alternative cost of keeping someone in Riker's Island is annualized at $90,000 dollars,” Hynes said.

Hynes also highlighted a system at Red Hook Community Justice Center which sometimes allows a defendant to come back to court every three days in lieu of bail.

New York Law Journal
Lippman Proposes Bail System Fix, Expansion of Supervised Release
By Joel Stashenko 02-06-2013

ALBANY - Chief Judge Jonathan Lippman yesterday called for a "top to bottom" overhaul of making bail determinations that not only protects public safety but is fair to low-income defendants waiting for their cases to be adjudicated.

Lippman told judges, elected officials and lawyers gathered at the Court of Appeals for his 2013 State of the Judiciary message that a "coherent, rational approach" is needed for a "vitally important part of the criminal justice system that has been untouched by reform." The chief judge urged passage of an amendment to the bail statute that would allow judges to consider the risk that defendants will commit additional offenses while awaiting trial in addition to the risk that they will not appear in court.

At the same time, he called for the creation of a statutory presumption to make clear that where defendants are charged with non-violent offenses they will be released pretrial with the least restrictive requirements possible unless prosecutors demonstrate they poses a legitimate risk to public safety or of flight.

"Our overriding goal must be to ensure that pretrial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court—and to do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make bail," Lippman said.

He also proposed the expansion of supervised release programs that monitor defendants pretrial and provide them with needed services. He noted that the cost of such programs is between $3,100 and $4,600 per defendant, compared to $19,000 for pretrial detention. Nearly 30,000 people are held in local jails at any given moment, the chief judge added.

In an interview after the speech, the chief judge and Judge Lawrence Marks, the first deputy administrative judge of the state courts, said it was unknown how many defendants would qualify for pretrial release under the proposal.

But Lippman said one ramification is clear: If his proposals are enacted, the bail bond industry in New York would be "basically irrelevant."

"It's a travesty that judges, prosecutors, don't make decisions about a person's liberty, that they're made on the basis of a profit-making money enterprise," Lippman said. "That that's the person who has in many instances the critical role in determining a person's liberty is outrageous. This is not something we can be proud of."

Critics of the current system complain that it effectively keeps poor people accused of low-level, non-violent offenses in jail because they cannot get bonds for relatively small amounts, such as $1,000 or $2,000. It is unprofitable for bondsmen to deal with such clients, said Steven Banks, attorney-in-chief of the Legal Aid Society.

In his address, Lippman said his reforms would lessen the reliance of the criminal justice system on a bail bond industry that exercises "enormous influence over who is released pending trial and who stays in jail" with "precious little public accountability." He called for testing whether the profit motive can be taken out of bond making, citing the example of The Bronx Defenders, which created a special fund to help low-income defendants make bail.

The chief judge also pointed to a supervised release program in Kentucky that he said has saved the state about $31 million since 2005 in lower detention costs.

In both the Bronx and Kentucky programs, Lippman said participants returned to court at a rate of 90 percent or better.

Lippman said the Unified Court System is working with the Center for Court Innovation to develop a supervised release program in New York City for misdemeanor defendants now being detained.

Assembly Codes Committee Chairman Joseph Lentol, who attended Lippman's speech, said he wanted to know more about the chief judge's plans for the bail system.

"I thought it was an excellent proposal," said Lentol, D-Brooklyn. "Public safety is a concern for all of us, and we have to be mindful of it when setting bail."

Wrongful Convictions

On another criminal justice topic, Lippman said more must be done to prevent wrongful convictions.

He applauded passage of a law last year, urged by the courts' Justice Task Force, expanding the DNA database and giving defendants greater access. And he joined Governor Andrew Cuomo in supporting the mandatory videotaping of interrogations of those accused of felonies and the institution of lineup procedures that shield suspects' identities from test administrators. He renewed his proposal for raising the age of criminal responsibility to 18 from 16 (NYLJ, Sept. 22, 2011) but said he would make changes to alleviate concerns about costs.

For one thing, Lippman said, the program the courts submit to the Legislature would require the courts to reimburse local probation departments for added costs. And he said the legislation would permit the holding of 16- and 17-year-olds in adult jails—but separate from adult offenders—rather than requiring their relocation to extremely expensive juvenile facilities.

In other areas, the chief judge:

• Backed a legislative proposal to allow audiovisual coverage of all courtroom proceedings with the stipulation that the presiding judge agrees and that the facial features of parties or witnesses who object to the presence of cameras be obscured.

Lippman said he hoped his proposal would renew a "robust public dialogue" on cameras in the courtroom that has been dormant in recent years.

Following his speech, the chief judge said it has been 17 years since the televised O.J. Simpson murder trial in California but that critics in New York continued to be "traumatized" by the excesses of that trial.

"We have to educate people about the critical work that goes on in the courts," Lippman said. "They have a right to know about it."

In the past, opposition to cameras has chiefly come from Democrats who control the Assembly, and they seemed to remain in opposition yesterday.

"I haven't heard anything different that we heard 10 years ago, as far as that goes," Assembly Speaker Sheldon Silver, D-Manhattan, a cameras-in-the-courtroom opponent, said yesterday.

Assemblywoman Helene Weinstein, a Brooklyn Democrat who chairs the Assembly's Judiciary Committee, said advocates for crime victims and witnesses have not been satisfied in the past by protecting their identities on camera through the use of "blue dots" or other methods of obscuring their faces.

"We have to dust off those files and look at it again," said Weinstein, who also attended Lippman's address.

• Pointed out that the Administrative Board of the Courts has adopted recommendations by his Task Force to Expand Access to Civil Legal Services to change the aspirational goal for lawyers to provide 50 hours of pro bono service a year instead of 20 (NYLJ, Dec. 7, 2012). Lippman (See Profile) said the administrative board also has adopted a new requirement that lawyers begin to self-report how many pro bono hours they provide and how much money they contribute to pro bono providers.

"Lawyers want to do the right thing and I think by making them report, they'll either put in the hours that they do or, if they're really sheepish about it and they haven't put in enough, they'll put in the big contributions to a legal services provider," Lippman said after his speech.

• Announced a committee to develop a pilot program that would allow people who cannot afford a lawyer to receive "low-cost" guidance from qualified non-attorneys on simpler legal matters. The committee will be chaired by Roger Maldonado of Balber Pickard Maldonado and Fern Schair of Fordham University School of Law.

• Promised to file legislation to require that the lender's attorney in a mortgage foreclosure action file a certificate declaring that there is a reasonable basis to begin the action at the initial filing of the summons and complaint rather than with the filing of a request for judicial intervention. This is aimed at the "shadow docket" of foreclosures that has developed in recent years.

• Announced the appointment of Robert Haig of Kelley Drye & Warren as chairman of a permanent Commercial Division Advisory Council that will review the recommendations of a recent task force (NYLJ, Jan. 24).