New York City is still imprisoning tens of thousands of people each year because they can't afford bail, according to data released today by the city's Independent Budget Office. In addition to exposing people who are presumed innocent to the many hazards of Rikers Island, pretrial detention disrupts people's ability to work, pay rent, and take care of their families, and drastically increases the chances that one will be found guilty of a crime.
On an average day in 2016, the city's pretrial jail population is 7,633—2,157 more are serving short sentences after being convicted—and 52 percent of those pretrial detainees are unable to post bail, according to the IBO data. The remainder were being held without the option of bail, or had other outstanding holds or warrants.
"There really is no good explanation for detaining a poor person...in New York simply because they can’t afford bail," said Joshua Norkin, a staff attorney at the Legal Aid Society focused on bail reform.
On paper, bail is supposed to be a tool to ensure that defendants return to court. In practice, it tends to lead to jail stays for poor, mostly African-American and Hispanic people who are then more likely to take plea deals. A 2012 report by the New York City Criminal Justice Agency found that people incarcerated until the end of their cases were 92 percent more likely to be convicted. 88 percent of the people incarcerated in New York City jails last year were black or Hispanic. 19 percent were jailed on low-level misdemeanors or violations, and 18 percent were jailed on drug charges.
New York actually has a relatively wide variety of options, nine in all, for judges considering whether to release a defendant at arraignment. They include having the accused promise to pay money if he or she misses a court date, or put down a partial deposit on the full bail amount. Nevertheless, judges in New York courts overwhelmingly favor bond or cash bail, sending a succession of low-income defendants to Rikers to await their next court date.
"What we’ve been saying for years is that judges and prosecutors should be utilizing these options," Norkin said. "The judiciary has failed to embrace the reform discussion. There is still a stunning lack of release on a non-monetary form of bail or alternative forms of bail."
The stasis is not for lack of effort by some in the judiciary and city government. In 2013, then-state Chief Judge Jonathan Lippman proposed a package of reform legislation to curtail the use of cash bail, saying at his annual State of the Judiciary address, "Incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation." Legislators took no action on the proposals.
The case of Kalief Browder, who killed himself in 2015 after spending three years on Rikers as a teen on robbery charges that were ultimately dropped, further spotlighted the problems posed by bail and the grindingly slow criminal justice system. Browder was held because his family couldn't afford his $3,000 bail.
Kalief Browder (screenshot)
That year, City Council Speaker Melissa Mark-Viverito proposed a citywide bail fund, setting aside $1.4 million to bail out low-level offenders. The fund is modeled after smaller bail funds run by public defender groups. Their experience shows that the overwhelming majority of people bailed out by a third party return to court, and fare better in the court process. The city's fund has yet to begin operation for reasons unclear. Mark-Viverito's office did not respond to an inquiry.
In 2015, the Mayor's Office also announced a $17.8 million program aimed at steering nonviolent defendants away from bail and jail, sending them instead into a pretrial supervision program. The program assesses defendants' risk of missing court and endangering people, and once they're approved, requires them to periodically call or check in in person with social service providers. Currently, judges are supposed to only consider defendants' likelihood of returning to court.
Norkin praised the new programs, but said they don't go far enough. Browder, for instance, was accused of stealing a man's backpack and punching him in the face, a violent felony, and wouldn't qualify for either the help of the bail fund or for pretrial supervision.
"It's useful to think about, when we talk about his story, that there are people who are accused of nonviolent felonies or of violent felonies that they may not have done," he said. "Those people also deserve due process. We should not just focus the conversation on small minor charges."
At the beginning of this year, New Jersey implemented sweeping changes to its bail system, requiring judges to assess defendants' danger to the public and flight risk and discouraging the use of bail. In the first six weeks of the year, judges considered more than 3,600 cases and authorized detention in just 14 percent. The new system has sparked complaints from bail bondsmen, whose business it basically destroys, and the type of potentially damaging headlines that can steer judges and prosecutors towards a draconian approach to bail. For example, a NJ.com article blamed the new guidelines for a judge's decision to spring a Franklin Township man who had spent two months as a fugitive after being charged with an assault in connection with a shooting.
The New York jail population has decreased dramatically since 2011, when the IBO last assessed bail, from 13,049 average inmates on a given day, 9,765 of them pretrial. Pretrial supervision comes with its own set of costs, but according to the Department of Correction, reducing the headcount further would save the agency $29,563 per year per inmate. De Blasio and Mark-Viverito's plan to close Rikers Island within 10 years is contingent on reducing the jail population to 5,000 in that period. De Blasio, Lippman, and others have said that reduction would require steering more people away from pretrial detention through measures including bail reform.
"Every single individual on Rikers represents an individual life. That's someone who's got a family, or a job, or someplace that they could be that's not Rikers, perhaps getting help, or into treatment programs," Norkin said. "The idea that more people are off of Rikers and the idea that drug-related offenses in particular have seen a decline is super encouraging. It just seems that obviously we have a long way to go before we would be comfortable saying that all of the people that we want off Rikers are actually off of Rikers."
This story has been updated to reflect that on average 52 percent of pretrial detainees couldn't afford bail in 2016, as opposed to 52 percent of the entire jail population, which includes people serving short sentences.