Some Sad Truths about Bail and Some Noteworthy Comparisons between the Bail Systems in New York State and Federal Courts

Posted by Steven G. Brill | Apr 28, 2012 | 0 Comments

This week, an article in the Village Voice written by Nick Pinto uncovered some very important issues about the bail process inNew 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.

About the Author

Steven G. Brill

Steven Brill is a founding Partner of Sullivan Brill, LLP, which was established in 2001.  Mr. Brill concentrates his practice to Federal and State Criminal Defense, and Post-Conviction Litigation.  Steven earned a BA in history at the George Washington University and graduated with cum laude ho...


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