The vast majority of the people coming through New York City’s criminal justice system are poor people of color from marginalized and under resourced communities. The vast majority of them cannot afford the price of their bail even when the bail amount may seem relatively low. For example, in a 2010 Human Rights Watch study, 88.7 percent of people who had bail set at $1,000 could not come up with the money at their first court appearance and so, instead of being released, they were sent to Rikers Island. Since most people cannot afford the bail that is set, New York City jails are filled with people who are essentially serving sentences without being convicted of anything at all. In 2009, at least half of the people sitting in New York City jails were there simply because they could not afford the price of their freedom.
The intent of the legislature when creating the New York State bail statue was to decrease the jail population, to allow individualized bail decisions and to define bail as a mechanism only for ensuring someone’s return to court. Indeed, the legislature drafted New York’s current bail statute to give criminal justice stakeholders the tools necessary to realize that intent. It did so by creating nine different forms of bail, including non-monetary bail, required judges to set two different forms of bail in each case, and instructed judges to consider individualized bail factors such as financial resources before making a bail determination. Unfortunately, due to a lack of an understanding of the detailed provisions in the bail statute, judges and attorneys are not using all of the tools available to them when making bail decisions. This lack of understanding and knowledge is the leading factor in increased pretrial detention.
The Bronx Defenders has spearheaded a city-wide initiative to radically change the way judges set bail in New York. We have created teaching materials and conducted trainings for public defenders, private attorneys and judges on alternative forms of bail. As a result of our initiative in the Bronx, 12 judges have used alternative forms of bail, resulting in the pre-trial release of countless clients.