Legal Aid's Chief Attorney Supports New York State Chief Judge's Call For Bail Reform To Prevent Low-Income New Yorkers From Languishing In Jail
WEDNESDAY, FEBRUARY 06, 2013

In his annual State of the Judiciary address yesterday, Chief Judge Jonathan Lippman called for bail reform because, as reported in The New York Times, the current system is stacked against those accused of minor crimes, keeping them in jail at great personal hardship and weakening their resolve in plea negotiations. The Chief Judge called that outcome “unfair” and said it “strips our justice system of its credibility.” Reporting on the Chief Judge's proposal, The New York Times cited data showing that there were 19,137 nonfelony defendants arrested in New York City who had bail set at $1,000 or less and that 87 percent of the defendants in those cases did not post bail and went to jail to await trial where they remained for an average of 15.7 days. One of the underlying principles of the bail system in New York is that bail should not reflexively reflect a presumption of guilt of a crime. But, as The Legal Aid Society has frequently pointed out, for low-income defendants, the current bail system often serves as a de facto sentence before trial.

Steven Banks, The Legal Aid Society's Attorney-in-Chief, told the Times that “[t]he bail system in New York is frankly an embarrassment.” Banks added that "[i]t’s essentially sentence first, disposition second.”

As an example of the problem, the Times reported on the case of Carol Brown, 54, who was arrested in East New York, Brooklyn, on January 24, when a local police officer said he saw her drop a crack pipe. She said she was innocent, but when a Judge set her bail at $1,000, she could not make bail.

Legal Aid Staff Attorney Cory Mescon, who represented Ms. Brown, told the Times that Ms. Brown was held for 12 days, including eight days on Rikers Island after her bail was reduced to $250, before the case was dropped because a lab test showed there was no drug residue on the pipe.

“I’m a human being, and I should be treated as so,” Ms. Brown said in a phone interview with the Times. “It doesn’t matter if I didn’t have a job. It’s the point that eight days of my life is unaccounted for, and for nothing.”

In an article in The New York Law Journal reporting on the Chief Judge's proposal, Banks noted that the current bail system effectively keeps low-income 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, since bondsmen view such low bonds as unprofitable.




The New York Times
Top Judge Says Bail in New York Isn’t Safe or Fair
February 5, 2013
By Russ Buettner

Castigating the bail process in New York as unfair to the poor and susceptible to allowing dangerous suspects to be set free, the state’s top judge called on Tuesday for an overhaul of the bail system that would bring the state closer in line with the rest of the country.

In his annual State of the Judiciary speech in Albany, the chief judge, Jonathan Lippman, said New York was one of only four states that did not allow judges to consider public safety when making a bail determination. The main criteria used by judges is the risk of the defendant’s not returning to court for trial.

“As a result, defendants may be put back on the street with insufficient regard to public safety, with possibly catastrophic consequences,” he said. “Few, if any, would seriously argue that judges should not consider the safety and well-being of people on our streets or in our homes when making bail decisions.

“This makes no sense and certainly does not serve the best interests of our communities and our citizens.”

Conversely, Judge Lippman said the bail system was stacked against those accused of minor crimes, keeping them in jail at great personal hardship and weakening their resolve in plea negotiations. The judge called that outcome “unfair” and said it “strips our justice system of its credibility.”

It will take some time to see how Albany lawmakers will react to those proposals. The judge’s past ideas have gained political traction: last year, a law was passed that drew on the recommendations of a task force he created to expand the state’s DNA databank and to ensure defendants’ access to DNA tests.

Most jurisdictions in the country use rigid schedules that set bail or bond amounts based on the crimes charged, said Timothy J. Murray, executive director of the Pretrial Justice Institute in Washington.

Judge Lippman’s proposal is in line with trends across the country to overhaul bail so that it is based more on an analysis of the risk that defendants pose to public safety, rather than their financial well-being. The United States Conference of Chief Justices, of which Judge Lippman is a member, last week adopted a resolution with similar goals.

“There’s clearly a national movement, which has examined our traditional bail practices and has, across the board called, for rational, safe and effective reform,” Mr. Murray said.

There is no way to quantify the precise number of cases where an inappropriately low bail was set for a violent suspect in New York. But those situations — especially if the freed suspect commits another crime while free on bail — are often seized upon by politicians and the news media seeking examples of so-called junk justice.

In 2011, for example, Mayor Michael R. Bloomberg criticized a Brooklyn Criminal Court judge for releasing a suspect in a drug case without bail, even though there was a warrant for his arrest for a shooting in North Carolina. A month later, the suspect, Lamont Pride, was arrested and charged with the fatal shooting of a police officer.

“It’s not a lot of work to do to protect the public,” Mr. Bloomberg said at the time. “It was not done, plain and simple.”

In the city, only 44 percent of defendants offered bail are released before their case concludes, said Jerome E. McElroy, the executive director of the New York City Criminal Justice Agency.

There have been studies on bail conditions for those arrested over low-level crimes.

A report by Human Rights Watch found that there were 19,137 nonfelony defendants arrested in the city who had bail set at $1,000 or less. The report found that 87 percent of the defendants in those cases did not post bail and went to jail to await trial. They remained for an average of 15.7 days.

Carol Brown, 54, was arrested in East New York, Brooklyn, on Jan. 24, when a local police officer said he saw her drop a crack pipe. She said she was innocent, but when a judge set her bail at $1,000, she knew she had no chance to make it.

Ms. Brown was held for 12 days, including eight days on Rikers Island after her bail was reduced to $250, before the case was dropped because a lab test showed there was no drug residue on the pipe, her lawyer, Cory Mescon, said.

“I’m a human being, and I should be treated as so,” Ms. Brown said in a phone interview on Tuesday. “It doesn’t matter if I didn’t have a job. It’s the point that eight days of my life is unaccounted for, and for nothing.”

One of the underlying principles of the system in New York is that bail should not reflexively reflect a presumption of guilt in a serious crime. But critics of the state’s bail mechanism have long said that for poor defendants, it frequently serves as a de facto sentence before trial.

“The bail system in New York is frankly an embarrassment,” said Steven Banks, chief lawyer for the Legal Aid Society. “It’s essentially sentence first, disposition second.”

Judge Lippman was harshly critical of the outsize role he said bail-bond businesses had taken in the process. The judge said bondsmen, who essentially ensure defendants will return to court for a fee and access to collateral, had typically ignored defendants held on low bail amounts because their fees were based on a percentage.

In recent years, the use of bail bonds and pretrial release rates have fallen, he said.

Judge Lippman suggested taking “the profit motive” out of bail bonding by encouraging more involvement of nonprofit organizations, something that was enabled by state legislation that passed last year and that the judge said had been a success in the Bronx.

He also called for the expansion of supervised release programs that monitor defendants awaiting trial and provide them access to social services, like programs to help overcome drug and alcohol abuse. He noted that pretrial detention cost an average of $19,000 per defendant nationally, whereas monitoring a defendant in the community cost less than $4,600.

“You do the math,” the judge said. “There is enormous potential savings if we can figure out how to safely and responsibly keep nonviolent defendants in the community while their cases are pending.”