The Bail Trap – The New York Times

On average, a couple of hundred cases pass through Brooklyn’s arraignment courtrooms every day, and the public defenders who handle the overwhelming majority of those cases rarely get to spend more than 10 minutes with each client before the defendant is called into court for arraignment.

…The sheer speed of the arraignment process makes it virtually impossible for the court to make informed decisions. Prosecutors have nothing to go on but a statement from the police and possibly a complaining witness, and defense lawyers know only what they’ve been able to glean from their brief interviews and perhaps a phone call or two. It’s in this hurried moment, at the very outset of a criminal case, before evidence has been weighed or even gathered, that a defendant’s freedom is decided. The stakes are high, and not only for the obvious reason that jail is an unpleasant and often dangerous place to be. A pretrial stretch in jail can unravel the lives of vulnerable defendants in significant ways.


… ‘‘He thought it was a beer,’’ Tomlin guesses. ‘‘He opens the bag up, it was a soda. He says, ‘What you got in the other hand?’ I says, ‘I got a straw that I’m about to use for the soda.’ ’’ The officer asked Tomlin if he had anything on him that he shouldn’t. ‘‘I says, ‘No, you can check me, I don’t have nothing on me.’ He checks me. He’s going all through my socks and everything.’’ The next thing Tomlin knew, he says, he was getting handcuffed. ‘‘I said, ‘Officer, what am I getting locked up for?’ He says, ‘Drug paraphernalia.’ I says, ‘Drug paraphernalia?’ He opens up his hand and shows me the straw.’’

…When it was Tomlin’s turn in front of the judge, events unfolded as predicted: The assistant district attorney handling the case offered him 30 days for a guilty plea. After he refused, the A.D.A. asked for bail. The judge agreed, setting it at $1,500. Tomlin, living paycheck to paycheck, had nothing like that kind of money. ‘‘If it had been $100, I might have been able to get that,’’ he said afterward. As it was, less than 24 hours after getting off work, Tomlin was on a bus to Rikers Island, New York’s notorious jail complex, where his situation was about to get a lot worse.

… Punched, kicked and stomped, Tomlin received medical attention, his face monstrously misshapen, his left eye swollen shut.

…Tomlin’s eye was still swollen shut on Dec. 10, three weeks after his arrest, when he returned to court. At this hearing, prosecutors handed over a report from the police laboratory, which had tested the drinking straw. At the top of the report, in bold, underlined capital letters, were the words ‘‘No Controlled Substance Identified, Notify District Attorney.’’

…Tomlin had lost three weeks of income, was subjected to brutal physical violence and missed Thanksgiving dinner with his family. But he resisted the pressure to plead guilty. His previous convictions all came from pleas, most of them made with bail looming over him. He knows the bitter Catch-22 of pleading guilty to get out of jail. ‘‘It feels great to go home,’’ he says. ‘‘Anybody’s happy to go home. But at the same time, it feels bad, because that’s more damage on your record.’’


…On the night of March 18, Adriana realized she was running low on diapers. A friend at the shelter who also had a child agreed to keep an eye on her daughter, and Adriana headed to a nearby Target. This was after curfew, and when a staff member saw Adriana leaving without her daughter, she called the police.

…Before her arraignment two days later, Adriana explained to her public defender what happened. Her friend could confirm that she was looking after the baby, she said. The lawyer told Adriana she’d do her best to get her released on her own recognizance. But when Adriana appeared in front of Judge Rosemarie Montalbano, the assistant district attorney asked for bail to be set at $5,000. Adriana had no criminal record and had never failed to make a court appearance, but the prosecutor cited an ‘‘A.C.S. history,’’ meaning that Adriana and her daughter had previous contact with the Administration for Children’s Services. This was true but misleading. The A.C.S. report involving Adriana had found that she wasn’t responsible for any neglect or abuse. What the A.C.S. did find was violence and coercion on the part of her boyfriend; this is how Adriana landed a spot in the domestic-violence shelter.

But arraignments happen quickly. Just as there was no time to track down Adriana’s friend to confirm that her daughter hadn’t been left unsupervised, there was no time to find out what the A.C.S. order actually said. The judge set bail at $1,500. Adriana’s public defender couldn’t believe it. ‘‘Judge, I’m going to ask you to state the reason for setting bail in this case,’’ she said, according to the court transcript. ‘‘Thank you, counsel,’’ was the judge’s only reply.

…With no way to come up with $1,500, Adriana spent the next two weeks on Rikers Island. Her bail made it harder for her to fight her case, but it also effectively dismantled the new life she was trying to build for herself and her daughter. She lost her bed at the shelter, and her child was living with strangers.

…Adriana’s lawyers tried to get her bail lifted, but they ran into another common problem facing defendants: Once a judge sets bail, other judges are often reluctant to second-guess their colleague’s decision. If they free a defendant who commits a crime while out on bail, the blowback from politicians, police unions and the tabloid press can be substantial. ‘‘I have no idea what motivated Judge Montalbano to set bail,’’ said Judge Andrew Borrok at one of Adriana’s hearings, four days after her arraignment. Still, he said, ‘‘I’m not inclined to change what’s been done.’’

…The judge ordered Adriana released. She could begin reassembling her life, finding a new shelter, retrieving whatever remained of her possessions. But her baby was still in foster care, and her case still wasn’t resolved. In June, a judge finally agreed to dismiss her case if she wasn’t arrested for the next six months. As this story went to press, five months after her arrest, she was still fighting in family court to regain custody of her daughter.

Outside the courtroom after the hearing for her release, Scott Hechinger, who helped coordinate Adriana’s defense, was exasperated. ‘‘Remember,’’ he said, ‘‘this is all about some diapers! Bail changes the conversation. If bail hadn’t been set, Adriana wouldn’t have to be negotiating to get out of Rikers. She’d just be released.’’


…Nearly three-quarters of a million aren’t in prison at all but in local city and county jails. Of those in jails, 60 percent haven’t been convicted of anything. They’re innocent in the eyes of the law, awaiting resolution in their cases. Some of these inmates are being held because they’re considered dangerous or unlikely to return to court for their hearings. But many of them simply cannot afford to pay the bail that has been set.

…The federal government doesn’t track the number of people locked up because they can’t make bail. What we do know is that at any given time, close to 450,000 people are in pretrial detention in the United States — a figure that includes both those denied bail and those unable to pay the bail that has been set. Even that figure fails to capture the churn of local incarceration: In a given year, city and county jails across the country admit between 11 million and 13 million people. In New York City, where courts use bail far less than in many jurisdictions, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail. And while the city’s courts set bail much lower than the national average, only one in 10 defendants is able to pay it at arraignment. To put a finer point on it: Even when bail is set comparatively low — at $500 or less, as it is in one-third of nonfelony cases — only 15 percent of defendants are able to come up with the money to avoid jail.

…The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments. New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution. If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed. By encouraging poor defendants to plead guilty, bail keeps the system afloat.

…. Without bail — and the quick guilty pleas that it produces — courts would come under significant strain. ‘‘The system would shut down,’’ Goldberg says. ‘‘A lot of the 250 people who were waiting to be arraigned in Brooklyn last night would all be coming back to court soon to go forward with a trial for a misdemeanor that no one has any interest in pursuing.’’

…In nonfelony cases in which defendants were not detained before their trials, either because no bail was set or because they were able to pay it, only half were eventually convicted. When defendants were locked up until their cases were resolved, the conviction rate jumped to 92 percent. This isn’t just anecdotal; a multivariate analysis found that even controlling for other factors, pretrial detention was the single greatest predictor of conviction. ‘‘The data suggest that detention itself creates enough pressure to increase guilty pleas,’’ the report concluded.

…The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.

The long-term damage [emphasis: New York Times] that bail inflicts on vulnerable defendants extends well beyond incarceration. Disappearing into the machinery of the justice system separates family members, interrupts work and jeopardizes housing.

The Bail Trap – The New York Times


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