This week, an article in the
Village Voice written by Nick Pinto uncovered some very important issues about the bail process in
New York criminal cases. Statistically, Mr. Pinto wrote that in 2010, only 17 % of those held
on $1,000 or less made bail at arraignment – which is the first
court appearance after one is arrested (usually about 24 hours after arrest).
The other 83% stayed in jail unable to post bail. Furthermore, Mr. Pinto
discovered that half of the defendants who were unable to post bail remained
in a jail cell until they agreed to a disposition on their case.
The import of this is that the poorer you are the more likely you will
plead guilty at your arraignment (or soon thereafter) in order to get out -
whether guilty or not. Bail, then, has become a coercive tool instead of what is was intended
to do - which is generally to address those who are a danger to the community
and a risk of flight. To add, if bail is set and you are an illegal alien,
the pressure is even worse. Once an illegal alien spends is held in on
bail and sent to Rikers, immigration authorities seize the opportunity
to lodge a warrant and an “immigration hold” and the illegal
alien is most likely on his or her way to deportation.
So, it is no surprise that if a defendant is in a stuck in a jail cell
after the arrest and arraignment, because of the inability to post bail,
they will be more apt to take a plea to resolve the case in order to get
out compared to those who can afford to post bail and fight their case
while they are at liberty.There is, however, a growing trend in the New
York criminal system (mostly by
New York criminal defense attorneys), towards bail reform. In Queens, for example, a pilot program is taking
defendants for whom bail would otherwise be set and freeing them on supervised
release. These defendants don't have to post bail, but they do have
to check in regularly with CJA (Criminal Justice Agency) staff members,
who ostensibly will help the defendants live productively while awaiting
their court date. Undoubtedly, this program is much more creative and
positive for society than the present way of holding defendants - charged
with low-level crimes - at
Rikers Island as the case proceeds.
Interestingly, this this pilot program in Queens is very much like the
Federal system of bail. When one is charged with a federal crime and is
presented before a federal magistrate after arrest, a magistrate’s
marching orders are found in the
Bail Reform Act of 1984. In a nutshell, under section 3142(b) of the Act, “the defendant
must be released on personal recognizance or unsecured personal bond unless
the judicial ofﬁcer determines “that such release will not reasonably
assure the appearance of the person as required or will endanger the safety
of any other person or the community.” In other words, as long as
some type of bail (whether by signatures and/or property/cash) will assure
the court that the defendant is not a risk of flight and does not pose
a danger to the community, he or she will be free on bail.
While a federal magistrate is free to impose a wide of range of conditions,
when setting bail, like curfews, drug testing, home-detention or strict
supervision, a defendant charged with a federal crime, generally has more
of a chance of being released on bail than a criminal defendant charged with a
New York crime – which is ironic considering that
federal crimes generally expose a defendant to a much more severe punishment.
Whether one is arrested in the New York State or federal criminal system,
bail is a crucial part of the arraignment process. It is important to have a
criminal defense attorney who can guide you and your family through process so that bail does not
interfere with your ability and your constitutional right to fight criminal
charges against you.