Finding the Next Bold Idea for Bail Reform

By MOLLY COHEN
Mayor’s Office of Criminal Justice

Chances are if you are a New Yorker charged with a misdemeanor and have little-to-no criminal history, you will be headed home after arraignment with no money bail. In fact, 80 percent of people charged with misdemeanors are released pretrial on their own recognizance.

New York City’s bail system works the way it’s supposed to for the vast majority of defendants.

But for the 27 percent of New Yorkers who have bail set and are unable to post it at the courthouse, the bail system’s shortcomings are very real. Even one night in jail can lead to loss of employment, housing and potentially custody of children. Longer stays of days or months can mean extended time away from families, derailing lives. And our system can make it difficult for families trying to post bail for loved ones. Judges are also unable to consider the risk a defendant poses to the community when making release or bail decisions.

Criminal justice advocates, policymakers, and everyday New Yorkers all have a vested interest in solving the problems associated with money bail. Despite our successes – the majority of defendants wait for trial in the community and successfully return to court – more work remains to ensure our system is fair and just towards every detained New Yorker. The Mayor’s Office of Criminal Justice and the Vera Institute of Justice are hosting an evening discussion at the Schomburg Center for Research in Black Culture on May 11 titled, “Resetting Bail: The Price of Justice in NYC.” Sparking an insightful dialogue about bail in New York City will, we hope, celebrate recent reforms; gather ideas to address persistent flaws; and, most importantly, allow us to hear from the community about what is working and what needs to be improved.

New York City is a national leader in the number of defendants released on their own recognizance. Nearly 70 percent of defendants await trial in their communities without any conditions like money bail or supervision, and over 90 percent of these defendants will return for their court appearances. Of those with bail set, most (70 percent) are at high risk of failing to appear for their trial or have been charged with a serious violent crime. In other words, there is considerable public safety interest in keeping the worst offenders off the streets. Recently, the Mayor’s Office announced citywide expansion of a pre-trial program to safely supervise over 3,000 defendants in the community who would have otherwise gone to Rikers Island.

Too often though, defendants’ outcomes are shaped by the gray area that determines whether justice is served or not. Some release decisions are driven more by guesswork than science, with bail amounts mismatched to the defendants’ financial ability to pay and the risk they pose of not returning for trial. Courts do not always have the tools to make sure that bail does not lead to unnecessary detention, and judges cannot, by statute, consider the risk someone poses to public safety.

Moreover, in a city the size of New York, small percentages can add up to major injustices. With over 340,000 arraignments per year and approximately 47,000 people detained on bail each year in New York City, any ambiguity in the bail decision process can have major effects on defendants and their families.

Our communities and our City cannot afford to get bail wrong. We need to look at small solutions as well as seismic systemic shifts. Fundamental questions remain unanswered: What actually brings defendants back to court? Could detaining some defendants pre-trial actually make us less safe in the long-term? The “Resetting Bail” event is an opportunity to ask those big questions and hear answers from both experts and impacted individuals themselves. The event will feature presentations by judges, research scientists, behavioral economists and comedians.

We are looking for the next bold, big idea on bail. Come and help us find it.

Chipping away at problems of bail in New York City

By INSHA RAHMAN
Vera Institute of Justice

This is the first blog post in a series about bail reform in New York City. The series will include blog posts from the Mayor's Office of Criminal Justice and the Vera Institute.

New York’s bail system is broken. The system is one epic bail fail. Bail reform is needed now.

These are some of the phrases and headlines splashed across New York City newspapers in the past year. From the New York Times to the New York Post, the City’s media is abuzz with talk of bail.

A couple of high-profile cases have punctuated these declarations. Kalief Browder, a Bronx teenager who was profiled in The New Yorker, was locked up at Rikers Island for years on $3,000 bail, spending some of his time in solitary confinement, until his robbery charges were ultimately dismissed. After he tragically committed suicide, Kalief Browder’s case became synonymous with the injustice of being held in jail while presumed innocent simply for being poor. On the other end of the spectrum, Tyrone Howard, who shot and killed a uniformed police officer while out on $35,000 bond, is cited as a cautionary tale of the bail system’s failure to maintain public safety.

Though neither example fully captures the complexity of how bail works, or doesn’t work, in New York City, they illustrate the point that our bail system is complicated. While there is no quick or easy fix, there is growing consensus that a reliance on money as the sole determinant of who is released and who remains in jail is unjust and misguided.

Taking a step back, here’s how bail generally works in New York City:

When a person is arrested in one of the five boroughs, they appear before a criminal court judge to be arraigned. At arraignment, almost half of all cases are resolved with a plea or the case being dismissed. For the rest, the judge has the choice of releasing the person on her own recognizance (ROR) without requiring any money to be paid, or setting bail. Historically, judges have only used two forms of bail—cash and insurance company bail bonds. Both forms of bail require a defendant or her friends and family to pay money to secure her release.

With cash bail, a defendant or her friends and family must pay the full amount of the bond to the court and will get that money back regardless of whether the case ends in a conviction or an acquittal, so long as the defendant makes every court appearance. With an insurance company bail bond, a defendant or her friends and family pay a smaller amount of the bond—usually 10% of its face value—to a commercial bail bond company, plus put up some amount of collateral in the form of cash or property. The bail bond company then posts bail. With a commercial bail bond, at the end of the case the defendant won’t see a dime of the money put up—even if she makes all her court appearances and is acquitted or the charges are ultimately dismissed.

Annually, over 300,000 cases are arraigned in New York City’s criminal courts. Of the 168,000 cases that continue past arraignments, approximately 70 percent are RORed without any bail being set. It’s those remaining 50,000 cases that get caught up in our bail system. Ostensibly, the arraignment judge who set bail identified those particular defendants as posing some kind of flight risk. By setting bail, the thinking goes, if a person has a financial stake in her criminal case she will come to court to avoid losing that money.

But money as the sole determinant of a person’s liberty is unjust. Half of all New Yorkers who have bail set don’t have the money to ever afford it, and for a variety of reasons many are not eligible for commercial bonds (a forthcoming blog post will explain commercial bonds in more detail). The average bail set in New York City courts on a misdemeanor case is $1,000, and on a felony case is $5,000. For many New Yorkers, paying $1,000 bail, let alone $5,000, is beyond their reach. Held in pretrial detention at Rikers Island or other city jails, people suffer serious life consequences such as losing their jobs and housing. Beyond the human costs, the legal consequences of being detained pretrial are real. People held in pretrial detention may plead guilty just to get out of jail, or take pleas to misdemeanor and felony convictions that stay on their criminal records for the rest of their lives.

Furthermore, using money as the sole determinant of a person’s liberty is misguided. Research shows that 86 percent of people who are RORed or make bail on misdemeanor cases make every court appearance in their case. People charged with felonies who are RORed or make bail come back to court at even higher rates. These statistics illustrate that money isn’t necessary to ensure that a person comes back to court.

When we say New York City’s bail system is broken, we’re talking about those 50,000 cases. While there is no quick or easy fix, some promising new practices and programs in New York City are attempting to remedy the injustices wrought by our bail system.

For example, the Bronx Freedom Fund and the Brooklyn Community Bail Fund, nonprofit charitable bail organizations, began more than two years ago to bail out people held on misdemeanor charges where bail was set at $2,000 or less. The initial results of the bail funds are impressive. To date, over 700 people have been bailed out by the two funds, and 97 percent of them have made every court date.

In arraignments, some judges are considering other forms of bail beyond cash and insurance company bail bonds. In the past few months, judges have set partially secured and unsecured bonds on more than a hundred cases across the five boroughs. In a partially secured bond, the defendant or her family and friends deposit no more than 10 percent of the bond amount directly with the court, and are only liable for the full amount if the defendant doesn’t show up for future court appearances. At the end of the case, if she has made every court appearance, the family or friends get that 10 percent deposit back. In an unsecured bond, money is only owed if the defendant fails to show up to court.

The Mayor’s Office of Criminal Justice is spearheading a citywide supervised release program where, instead of bail being set, people facing certain misdemeanor and non-violent felony charges are released while their cases are pending under the monitoring of community-based nonprofits.

And more change is on the way.

Former Chief Justice Jonathan Lippman of the New York Court of Appeals is leading an independent commission to study how to reduce the number of people at Rikers Island. Reforming the bail system to keep more defendants at liberty pretrial is one key means of reducing the jail population on the Island. In the next several months, the New York City Council is launching a $1.4 million citywide bail fund to pay bail for people charged with misdemeanors who cannot pay it themselves.

And the Vera Institute and the Mayor’s Office of Criminal Justice are hosting an open forum on bail reform, called Resetting Bail: the Price of Justice in New York City, at the Schomburg Center in Harlem on May 11, 2016.

Slowly we’re chipping away at the larger problems with our City’s bail system. This blog series will feature opinion pieces from various perspectives, links to newsworthy articles, and updates about bail reform in New York City as we collectively tackle the failures of our system and work to create a better one.

Stay tuned.