Slate: The Problem with Bail

Former Bronx Defenders Trial Chief David Feige writes in Slate about the problem with the bail system and one simple way to fix it:

On Sunday, John Oliver devoted the majority of his HBO show to America’s broken bail system. “Bail” is the cash or property equivalent demanded of arrestees as surety—an assurance that they will return to court to face trial on the charges they have been accused of. The theory goes like this: Make someone put up $500 (or $500,000) and he’ll return to court, if only to get his money back. And while this sounds fine in theory, in practice it has become nothing more than a shockingly effective way to coerce guilty pleas from poor people.

In America we tend to incarcerate a higher percentage of our citizens than any other country on Earth. And fueling that pipeline to jail and prison is a criminal justice system that processes more than 12 million arrests every year and has left nearly one-third of working-age adults saddled with a criminal record. Nearly all of these arrests are for relatively minor offenses. Indeed, less than 10 percent of arrests (and less than 4 percent of criminal cases when one counts the millions of criminal summonses issued every year) concern what the FBI terms “violent offenses.”

The sad truth is the millions of misdemeanor cases disproportionately affect the lives of people of color, and especially the poor, and there are few ways in which this effect is more dramatic than in the way that bail decisions affect case outcomes. Working as a public defender in the Bronx, I regularly saw clients languish at Rikers Island simply because they couldn’t afford to buy their way out. These were not people who had been convicted and were serving sentences; they were just poor clients sitting in their jail cells waiting for their chance to fight their case. But few are able to do that. Because once in jail, people are faced with a terrible choice: Plead guilty and go home saddled with a criminal record, or maintain innocence and remain in jail. Spend a night or two at a place like Rikers Island and you’ll understand why almost everyone opts to just plead and go home. After watching this fundamental unfairness almost nightly for several years, my former office—the Bronx Defenders—and I decided to try to do something about it.

It’s important to remember that this system of exploitation is not an accident. It is by design. Because without coercing pleas from as many defendants as possible as expeditiously as possible, the criminal justice system would collapse under its own weight. In 2013, New York City arraigned 365,752 criminal cases (a number that does not include more than 450,000 summonses). Those cases resulted in 691 trial verdicts, leaving 365,061 cases to be disposed of without a trial.

Judges and prosecutors are fully aware of their utter inability to try anything close to the number of cases police push into the system. For the system to function, there must be pleas. By setting bail, judges accomplish two things: They cover themselves politically if a defendant goes out and kills someone (because at least they set bail rather than releasing anyone), and they fundamentally alter the criminal justice playing field by dealing the prosecutors an essentially unbeatable hand.

There is a vaguely Newtonian truth of criminal justice: A body incarcerated tends to stay incarcerated. A body at liberty tends to stay at liberty Much like a phase change in physics, sending someone to jail takes a great deal of effort, and getting him or her out of jail does as well. Thus the incentives to plead guilty when one is at liberty are a fraction of what they are when one is incarcerated.

But it does not have to be this way. Several years ago the Bronx Defenders helped establish the first licensed charitable bail organization in New York state—the Bronx Freedom Fund. (I’m still the chairman of the board of the nonprofit fund.) The idea was simple: Post bail for people too poor to afford it, work with their lawyers to ensure that they return to court, and see what happens.

Here’s what did: Ninety-eight percent of bail fund clients made every one of their court appearances. Whereas every single client would have previously pleaded guilty just to get out of jail, in more than 50 percent of the cases in which bail was posted the charges were entirely dismissed. Of the remaining cases, most resulted in noncriminal dispositions, and not a single recipient returned to jail on the case in which the Freedom Fund posted bail. The average amount posted? Less than $750. (And since bail money is returned to the fund, once a case is closed, the fund is able to use the dollars again and again to bail out other clients.) What the Bronx Freedom Fund did was fundamentally upend the power dynamic of the criminal justice system by removing poverty as a lever through which to extort pleas.

There are other ways to do this, of course, but they come at a cost. On his show Oliver touted the “pretrial services” model. In it, there is a presumption of release, and defendants are steered to an agency that assesses them for needs and can impose conditions on their release. And while it is certainly a whole lot better (and a lot cheaper) than pretrial detention, it is also terribly ill-suited for the vast majority of cases.

Pretrial services is a terrific model in felony cases in which high bail would normally keep someone in jail and a certain amount of monitoring may be warranted. But unfortunately, fewer than one in 1 in 7 cases is a felony and fewer still are violent felonies. But all those misdemeanor cases (assuming one can post bail) generally result in fines, community service, drug or alcohol counseling, or probation. The problem with the pretrial services model is that in these misdemeanor cases, it institutes an Alice in Wonderland justice: sentence first, verdict afterward. Pretrial release is just another way of imposing probation before conviction, replicating albeit in a more benign fashion the very problem the system aimed to solve. By contrast, because the charitable bail fund model works with defense lawyers to ensure clients return to court, it is able to assist clients in seeking services they might need without mandating that they do so. After all, they haven’t yet been convicted of anything, and thus should not, until there is a conviction in the case, be subject to judges’ orders about what they need.

There is no question that our bail system is broken, and Oliver deserves enormous credit for exposing its shortcomings. But if we cannot eliminate money bail entirely in favor of presumptive release, we should at least craft solutions—like a charitable bail fund—that do not require paying for unproven misconduct in advance and are specifically targeted at the millions of misdemeanors that actually comprise our criminal justice system. The outcome of a criminal case should never turn on a defendant’s socioeconomic status. Reforming our bail system is a good first step toward ensuring that it never does.

By David Feige

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