No Bail Money Keeps Poor People Behind Bars

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Every day three quarters of the people sitting in a New York City jail are waiting for trial. Most are there for one simple reason: they are too poor to make bail.

Nearly 50,000 defendants each year are put behind bars after their first court hearing pending trial. Most spend days or weeks in jail. Some, however, can spend months or more than a year on Rikers Island all because they can’t afford to make bail. And that costs taxpayers a lot of money.

“It is beyond my imagination why we would let a system like this continue to exist in New York, where you are draining our resources and treating people unfairly, with no humanity and with no purpose,” said Chief Judge Jonathan Lippman, the man who oversees the state court system.

Lippman thinks the bail statute should be overhauled. Earlier this year, he proposed changes to effectively require judges to release defendants pending trial unless there’s a compelling reason to hold them – like public safety.

New York State is one of only four states in the country that doesn’t allow judges to consider public safety when setting bail. Instead, the sole purpose of bail in New York is to ensure defendants return to court. That means dangerous people might get out while some nonviolent poor people might sit behind bars, Lippman said.

“Some people need to be incarcerated. But to systemically have a system that has the presumption that you’re in jail unless you can pay enough money to get out is ridiculous. I mean I don’t understand it,” he said.

When judges set bail, numbers show it might as well be a jail sentence. Only about 12 percent of defendants will make bail at arraignment, which is the first court hearing for a defendant, typically 24 hours after an arrest.

Javier Hernandez, 33, was arrested Aug. 6, 2012, and accused of manslaughter in a hit-and-run accident that left a pedestrian dead. When he sat down for an interview late last month, he’d been on Rikers Island for more than a year without a trial.  

To get out, he’d need to come up with $100,000 cash or post a $200,000 bond, which costs a lot up front.

Hernandez said he would have to “put a house down and $13,000 cash, which — I don’t have that.”

In the interview, he said he might plead guilty in exchange for a sentence of two to six years.

“What you try to think about is if I cop out, I can get off this island and do my time where it’s somewhere a little more comfortable,” he said. Days later, he took the plea deal.

Hernandez’s year behind bars cost taxpayers about $170,000, according to figures the Independent Budget Office released last month. The same office in 2011 reported that the annual cost to incarcerate people who can’t make bail is $125 million.

“The cost to the taxpayers is far greater than any criminal justice system advantage,” said Steven Banks, the Legal Aid Society’s attorney-in-chief.

Much of that money is spent holding people on relatively minor charges.

A Human Rights Watch report showed that in 2008, nearly 17,000 people accused of no more than a misdemeanor couldn’t make bail of $1,000 or less. They averaged almost 16 days in jail. Most were accused of nonviolent crimes such as possession of marijuana or jumping a subway turnstyle.

To be sure, New York City has done a lot to reform the use of bail. The city led the pretrial justice movement in the 1960s and today releases more defendants at arraignment than most other large cities.

Over the past decade, the percentage of defendants released at their first court hearing has steadily increased to more than 70 percent, according to figures from the New York City Criminal Justice Agency. The agency is a nonprofit that screens defendants before arraignment for the courts. That screening helps judges decide who is safe to release and who is a risk of failing to return to court.

The city has also tried some programs as alternatives to bail. The Criminal Justice Agency runs a couple community supervision programs, and the Brooklyn District Attorney’s Office is starting a supervision program for misdemeanor defendants.

“They would work with them to remind them of their court date, make sure there are no impediments to coming to court and otherwise help to ensure the defendants return to court, which is what everyone’s concern is,” said Anne Swern, the first assistant district attorney. Her office is partnering with the Center for Court Innovation on the project. 

But so far, alternatives to bail have been relatively small. And some advocates say it’s also not right to force people accused – but not convicted – of a crime to take part in invasive programs.

As it stands, every day there are more than 9,000 people in city jails accused but not convicted of a crime. Such detention has an impact on cases, said Banks, the Legal Aid official.

“Experience and data shows that you’re more likely to be able to favorably resolve your case if you’re not being held on Rikers Island pending your trial or your court proceeding,” Banks said.

Being behind bars puts a lot of pressure on people who stand to lose their jobs and are away from their families, he added.

“People who are in the community are more likely to be able to help their defense lawyer to develop the facts that are needed to contest the case and there’s a pernicious effect of holding people on Rikers Island,” Banks said. “It wears on you, and your resolve to continue to fight a case that may have little merit is worn down by the fact that you’re actually behind bars.” 

Take the case of Raul Hernandez, no relation to Javier, who was arrested Aug. 2 for misdemeanor drug possession after a cop accused him of dropping an empty plastic bag containing heroin residue.

Hernandez admits he isn’t a saint. He has multiple convictions on his record, mostly for drugs and larceny. But this time, he said he didn’t do it, and he turned down an offer of seven days in jail in exchange for pleading guilty.

After he rejected the plea agreement, a judge decided not to release Hernandez pending trial and set bail at $500.

“I couldn’t post it,” Hernandez said. “I don’t have nobody.”

So he went to Rikers Island for nine days – longer than he would have served if he’d taken the plea. On his next court date, he came back expecting to argue his case — only the cop who allegedly witnessed the incident was off that day and unavailable to testify.

So Hernandez had a choice: maintain his innocence and stay in jail, or plead guilty, get credit for the time he already served and go home. He pleaded guilty to get out of jail.