We Can Better Employ Bail Statute

An excellent letter on better employing the bail statute written by Joshua Norkin, a Staff Attorney in the Criminal Practice, appeared in the New York Law Journal printed edition yesterday. The letter is printed below.

New York Law Journal
We Can Better Employ Bail Statute
By Joshua Norkin
September 24, 2014

In his 2013 State of the Judiciary address, Chief Judge Jonathan Lippman called for "a top-to-bottom revamping of the rules governing bail in our state." He urged the state "to do all we can do to eliminate the risk that New Yorkers are incarcerated simply because of the lack the financial means to make bail."

Unfortunately, little has changed in the day-to-day functioning of arraignments in the wake of Lippman's call to action. While there are nine ways to post bail available in New York,1 most judges still give the defendant only two options—cash or insurance company bond. Other bail alternatives, such as the recently adopted credit card option are grossly underutilized.2

The current situation presents an insurmountable problem for thousands of indigent defendants who cannot afford the hefty financial cost of freedom. Those who are too poor to post bail languish on Riker's Island, where they face physical violence, lasting damage to family and community relationships, the loss of employment and, as the chief judge noted, "a serious disadvantage in the plea-bargaining process." Many defendants who sit in jail long enough eventually reach the conclusion that it is more beneficial to plead guilty, and get released, than it is to continue to wait for a trial in jail. That is not justice.

For over three years, the Legal Aid Society has worked to better employ the state's current bail statute, retraining every attorney in each of our five borough offices on its intricacies. The result has been an increase in bail reviews and applications for alternative bail.3 When judges grant these bail applications, the results are exceptional.

In a 2011 Bronx case, Legal Aid arraigned a case where the defendant was accused of criminal contempt for violating a court-issued order of protection. The defendant was unemployed, but had a sister who worked as a full-time nurse. After collecting the necessary financial paperwork to show the court her good financial standing, the sister came in on the CPL 170.70 release date. When the defendant was not released pursuant to the statute, the judge granted the defendant's application for a partially secured surety bond.

The sister gave the court 10 percent of the bond and promised to return the defendant to court. The defendant made his next two appearances before the case went to trial, where he was acquitted of all charges. Had the judge not issued the partially secured bond, an innocent defendant would have sat in jail before he had a chance to challenge the allegations against him. Had he remained incarcerated pretrial, the pressures on him to take a plea would have been enormous.

In Manhattan this past December, Legal Aid arraigned a case where the defendant was accused of assaulting a co-worker. The defendant had a number of prior contacts with the criminal justice system and an open case in another jurisdiction. The defendant was employed, but made only enough to get by and was unable to afford cash bail. The defendant's wife was also in the audience with $200 cash.

The judge set a partially secured surety bond at $2,000, accepted the $200 as partial security for the bond, and swore in the wife as the surety. The defendant made all his court appearances and the case was dismissed after the district attorney conceded the prosecution could not meet its burden of proof.

Reforming our system of pre-trial detention is a necessity. Far too many people sit in jail before trial waiting for justice that will never materialize. The reason is far too common: they can't afford the alternative. Until the judiciary and Legislature agree on broader reform, judges, prosecutors and defense attorneys should not hesitate to use all of the tools at their disposal to help alleviate the burden pretrial detention places on defendants and on the criminal justice system.

Judges have to be willing to grant defendants more bail options. After three years of advocacy, we have proof that the alternative forms of bail work. If further evidence is needed, judges should take into consideration the pretrial release practices of federal courts and judiciaries in other states.

In his initial remarks, Lippman noted that, "Back in 1964, Robert F. Kennedy made a powerful case for bail reform, saying: 'Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money.'" Forty years later those words still speak the truth. We have tools to improve the situation. The judiciary should feel emboldened to use them.


  1. These are cash, insurance company bail bond, secured surety bond, secured appearance bond, partially secured surety bond, partially secured appearance bond, unsecured surety bond, unsecured appearance bond and credit card or a similar device. See CPL 520.10.
  2. See Mary T. Phillips, "New York's Credit Card Bail Experiment," New York City Criminal Justice Agency, September 2014. Where a credit card is utilized the use of the card shows no significant effect on the likelihood of a failure to appear. (page 46).
  3. CPL § 520.10 lists nine different forms of bail that a judge could choose to set. Judges must set two forms of bail, but can set more if they wish. The other seven forms of bail are often referred to as "alternative bail" because of their sporadic use. Cash and insurance company bonds are the only two routinely employed in NYC courts.

Joshua Norkin