NEW YORK—Public defender Josh Saunders has seen over and over again how his clients go to jail and suffer major life-altering consequences, when just $500 for bail would have prevented it.
Because they could not afford to post bail, clients who hold jobs as fast-food workers, security guards, and home health aides have gotten fired for missing days at work while detained at Rikers Island, waiting for the court to make a final ruling on their cases. Families lost temporary homes in shelters because a loved one was jailed and could not return home for the night, violating the terms of stay.
Saunders said that oftentimes clients end up pleading guilty to the crime just to get out of jail, even if they feel they were innocent.
“As public defenders, we all face this terrible moment, when we say to the client, you can plead guilty and get out, and you’ll have a record. Or if you fight your case, you stay in jail,” he said. “It’s a quandary a middle-class person doesn’t face.”
Bail is imposed after a person is arrested and charged, as an incentive for the defendant to return to court. But people who cannot afford bail are left with few options: they either face incarceration before they are convicted of any crime, or are pressured to plead guilty to get out of jail.
In his latest State of the Judiciary address in February, New York State Chief Judge Jonathan Lippman expressed his wish to overhaul the bail system, to “guard against those unfair and unacceptable instances in which indigent defendants are incarcerated merely because they cannot meet a minimum bail amount, often as low as $500 or less. This situation is shameful and must be changed.”
About 75 percent of the average daily jail population in New York City is being detained awaiting trial, according to the latest estimate by the city’s Independent Budget Office. On a daily basis, almost half of them, or more than 4,000 inmates, are there because they could not afford to post bail.
A Different Kind of Charity
To help these indigent defendants fight their cases out of jail and without the pressure to plead guilty, Saunders and a fellow public defender, Scott Hechinger, are creating a charity fund, which would be sponsored by their employer, the Brooklyn Defenders Services.
“Right now, there are two different criminal justice systems for people: one for the middle class, and one for the poor,” said Saunders. Many of his high school student clients have missed their statewide exams after getting arrested and detained for jumping the subway turnstile, he said. He hopes the fund will prevent consequences that make life even more difficult for the poor, as much as possible.
The charity, called the Brooklyn Community Bail Fund, is made possible by a 2012 law that allows nonprofit organizations to post bail for defendants with misdemeanor charges, who are facing bail of $2,000 or less. If the defendant makes all of his or her court dates, all the money will be returned to the fund—except in the case that a defendant pleads guilty, where only 97 percent is returned.
Saunders said he hopes to begin posting bail next January. “It’s an exciting donation for people,” he said, “because the money can continue to help, interminably.”
More than 85 percent of arrests in 2012 were for misdemeanors and other non-felony crimes of lower offense, according to the Criminal Justice Agency (CJA). Misdemeanors include jumping a subway turnstile. Violations, usually punished with a fine or a jail sentence of less than 15 days, include possession of marijuana.
Almost 24,000 arrests are non-felony cases where bail has been set. An overwhelming majority (92 percent) of the 24,000 non-felony cases where bail was set had bail posts under $2,500. Yet only 37 percent of these defendants were able to make their bail at arraignment, according to CJA data.
After defendants are released, the fund will refer those in need to community-based organizations that can provide additional social services, such as translating legal documents, finding housing, drug and alcohol counseling, or placement into a GED high school equivalency program. Sometimes, a defendant may just need someone to remind them about their court dates and make sure they are able to get to court.
A lot of times just getting to court is a problem for them. They just don’t have the money for a MetroCard,” said Saunders.
Benefits to Individual, and Taxpayer
Saunders noted that it’s often more advantageous for his clients to fight their cases out of jail. People are able to negotiate plea deals, or resolve their cases more successfully when they are back in their own communities.
It’s also costly to keep people in jail. The Independent Budget Office (IBO) estimates that the annual cost of incarcerating pretrial detainees who were unable to post bail is about $125 million.
“It just doesn’t make fiscal sense,” Saunders said. “If they [detainees] could’ve paid the $500 bail, chances are high they wouldn’t have to serve any jail time at all,” thus saving the city a lot of money.
That is the case for many defendants who benefited from a similar charity fund created in the Bronx, which was also the first nonprofit bail fund in the state. Started last October, the Bronx Freedom Fund works with clients from The Bronx Defenders, a public defender office.
Fifty-one percent of clients who were bailed out through the fund had their cases dismissed. Project Director Alyssa Work explained that prosecutors will often drop charges once someone is out of jail and not pressured into pleading guilty. “For example, they might say that there wasn’t enough evidence to charge the person,” Work said.
So far, their clients have a 98 percent court appearance rate. The fund has served 149 clients so far, with roughly $100,000 in the fund.
New York state is one of four states in the country where judges cannot consider the risk to public safety when setting bail amounts; judges only need to assess whether defendants will return to court.
Lippman called for reforms in his February address that would include such considerations, though it will be up to legislators to make that change.
Saunders said that for now, many judges still set bail amounts far beyond what indigent defendants can afford. “A $1,000 bail doesn’t mean that much for someone with a bank account. But for my clients, it might as well be $500,000, because they’re just not going to able to make it.”