Bail (and Jail) in New York

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According to the latest figures published by New York’s Division of Criminal Justice Services (DCJS), there were 576,319 arrests in the state during 2011. 576,319. That’s 93 fewer arrests than there are people in the state of Wyoming! And DCJS statistics don’t include arrests for violations such as harassment or disorderly conduct.

Even assuming some duplication (and we’ve certainly had more than one client who’s been arrested more than once in a year) that’s still a prodigious number of people cast into a pretrial purgatory. You might be innocent – you’re certainly ‘presumed’ innocent – but you wouldn’t know it from the way you’re treated.

The court is required to issue a securing order anytime a defendant’s “future court attendance at a criminal action or proceeding is or may be required[,]” and that securing order will either release you on your own recognizance, send you to jail, or fix bail.

Bail has been around in one form or another for at least a thousand years, according to an informative blog post by author Susan Higginbotham. In fact, the bail system was given what might be called its modern form more than 500 years ago, during the reign of Richard III: In 1484, Parliament gave judges discretion to set bail upon an initial arrest for a felony

“[b]ecause various people are arrested and imprisoned daily on suspicion of felony, sometimes out of malice and sometimes on vague suspicion…”

When making bail determinations, a court is supposed to consider a number of factors, including ties to the area, employment and financial resources, and your criminal record if any.

The court is also required to address the very concern expressed by the English Parliament in 1484: “the weight of the evidence against [the defendant] … and any other factor indicating probability or improbability of conviction.” In practice, unfortunately, this sometimes amounts to little more than citing the arresting officer’s supporting deposition as if it were the word of God.

The judge will certainly – and this is important – check to see whether you’ve ever failed to appear when required.

As recent pieces in the New York Times and the Guardian have pointed out, poor people are much more likely to be locked up under New York’s pretrial procedural system than the rich.

There are a number of reasons for this. For one thing, the poor are somewhat more likely to miss court dates than are the rich, often through no fault of their own. Sometimes they have to choose between losing their jobs later if they get arrested on a bench warrant and losing their jobs right now if they leave to attend court. Having seen clients desperately trying to line up rides to out-of-the-way courts, it’s clear that transportation is often a problem.

And finally, even a nominal bail amount can keep a poor defendant in pretrial detention. We have seen clients jailed for want of $200.

We’ll get further into this in a later post. Specifically, we’ll discuss recent proposals by New York’s Chief Judge, Jonathan Lippmann. In his report, The State of the Judiciary 2013, Judge Lippmann recommends a complete overhaul of the state’s bail system. This would require revamping the bail statutes; expanding supervised release; and reforming the bail bond industry.