Testimony Regarding the Examination of New York's Bail System and the Need for Reform
The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony regarding the pressing need for reform of bail practices in New York City’s criminal courts. The NYCLU, the New York State affiliate of the American Civil Liberties Union, is a not-for-profit, nonpartisan organization with eight offices across the state and nearly 50,000 members. The NYCLU’s mission is to defend and promote the principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of New York. The NYCLU works tirelessly to ensure fairness in the criminal justice system, end mass incarceration, and prevent punishment of people because they are poor. New York’s bail statute was passed in the 1970 with the express purpose of creating a presumption of pretrial release.1 Unfortunately today, the effect of the bail statute is the opposite of its intent. The majority of people charged in New York City serve time without having been convicted of any crime. The NYCLU presents the following testimony today in support of reforming bail in New York City. We encourage the Council to immediately change New York City policy to abolish cash bail for misdemeanors and non-violent felonies and to join the movement to give that policy force of law in Albany. New York City should be at the forefront of modern, data-driven criminal justice reforms. The data show that cash bail serves no legitimate government purpose, results in mass incarceration of people merely because they are poor, and disproportionately affects people of color. Abolishing cash bail is the single most effective step New York City could take to reduce mass incarceration. The Council must be careful, however, not to trade one problem for another by replacing cash bail with heavy-handed pre-trial supervision systems. Too often, the onerous and often unnecessary demands of such systems violate civil liberties and create a trap for people of limited means who wind up incarcerated because they lack the means to comply. Some people deserve and need pre-trial services, and some require a degree of pre-trial supervision, but the Council should not lose sight of the presumption of innocence and New York’s progressive commitment to pre-trial liberty. The default alternative to cash bail should be release on a defendant’s recognizance or an unsecured bond. I. CASH BAIL DOES NOT SERVE ITS PURPOSE. The purpose of bail is to secure a person’s appearance in court—that is, to prevent people from fleeing their responsibility to face criminal charges. But in New York City, the difference in the court appearance rates for people held on cash bail and people released on their own recognizance is negligible to the point of meaninglessness, according to the City’s own studies.2 The overall appearance rate by criminal defendants in New York City under the current cash bail regime is 86%. 3 Washington, D.C. has essentially abolished cash bail4 and yet the appearance rate in that jurisdiction is 89%.5 In Kentucky, which also has abolished cash bail, the appearance rate is 92%.6 The data demonstrate that cash bail does nothing to secure defendants’ appearances in court. Cash bail does not serve any purpose other than to incarcerate people who are too poor to pay it. II. CASH BAIL PUTS PEOPLE IN JAIL BECAUSE THEY ARE POOR. In cases where bail is set, 88% of defendants can’t make bail at their arraignment and go to Rikers; around half of them will never make bail and spend the duration of their proceedings locked up.7 This amounts to hundreds of thousands of people each year who would be free but for the fact that they do not have enough money to pay their way out of jail. Many of these people are in jail for the lack of a couple hundred dollars. 87% of people who are offered bail of $1000 or less cannot afford it.8 Almost a third of people who are offered bail of $500 or less cannot pay, and end up in Rikers.9 The notion that any person, let alone so many people, should be incarcerated merely because they are poor is offensive to American values and New York principles. It is also unconstitutional. Incarcerating people solely because of their inability to pay for their release violates the Equal Protection Clause of the Fourteenth Amendment.10 Earlier this year, the United States Department of Justice filed a brief in federal litigation challenging bail practices in Alabama, urging localities across America to take second look at bail practices that “work differently for the indigent and the wealthy."11 The City Council should heed the call of the Department of Justice to end practices that result in people being incarcerated solely because of their economic status. III. CASH BAIL DISPROPORTIONATELY JAILS PEOPLE OF COLOR. The data clearly show that the cash bail system discriminates on the basis of race. Black people are less likely to be released on their own recognizance than white defendants, and receive significantly higher bail amounts than defendants of other races.12 In cases where judges and prosecutors have the most discretion—that is, for the low-level offenses where judges could easily choose to release but instead set bail at under $1000—almost 90% of the people who are given bail instead of release are people of color.13 Kalief Browder was a boy of 16 when sent to Rikers for a crime he did not commit because his family could not afford $3000 bail. Browder sat there for three years without a trial. He was repeatedly beaten by guards and inmates in Rikers. He spent two years in solitary confinement. Two Saturdays ago he pulled an air conditioner out of a wall, pushed himself through the hole and jumped feet first with a cord wrapped around his neck.14 We cannot ignore the human cost of unnecessary pretrial incarceration any longer. IV. CASH BAIL MAKES THE CRIMINAL JUSTICE SYSTEM UNFAIR. Cash bail makes our criminal justice system inherently unfair to the poor. The inability to make bail forces people to plead guilty, regardless of whether they actually are guilty or have valid defenses. This is especially the case for misdemeanors that do not carry significant jail sentences because, often, the time spent waiting for trial is longer than the sentence one might receive if found guilty. Consider the case of Raul Hernandez, who would have received only a seven-day sentence if he pled guilty and so, after spending nine days in Rikers fighting for his innocence, gave up and took the plea to time served.15 If Mr. Hernandez had the means to post bail, he would have the freedom to fight his charges. Because he did not, he was effectively punished with incarceration for choosing to exercise his right to due process and to maintain his innocence. People who are incarcerated pending trial are four times more likely to be sentenced to imprisonment and three times more likely to be given a longer sentence.16 The data doesn’t say why this is the case, but the public defenders will tell you in no uncertain terms that their incarcerated clients do not have the same ability to assist in preparing a defense and demonstrating mitigating circumstances to a prosecutor considering a plea or a judge considering a sentence. V. CASH BAIL IS AN UNNECESSARY WASTE OF MONEY. More than half of the annual admissions to Riker’s Island are people who are going to jail because they cannot afford to pay their bail.17 At any given time, almost 40% of the Rikers population is there solely because they are too poor to pay their bail.18 The most recent and comprehensive study of the cost of incarcerating a person at Rikers is $571 per inmate per day.19 The New York City Independent Budget Office estimated that the cost of holding people who are unable to afford bail was approximately $125 million per year.20 Eliminating cash bail therefore would save New York City many thousands of dollars a day and millions every year. The Council should consider not only the direct expense of unnecessary pretrial incarceration but also the enormous collateral financial and social costs to the City resulting from the disruption in peoples’ lives following arrest. On average, people held on bail spend almost 16 days in Rikers.21 In that time, people lose their jobs and become dependent on social services; fall behind in school and become at greater risk for drop-out; are evicted or foreclosed upon, destroying lives and harming the economy; and cannot care for children or elderly dependent relatives, breaking families apart, putting elderly lives at risk, and further straining the City’s social services. These yet-to-be-quantified costs of cash bail likely dwarf the daily expense of housing people in Rikers. Some on the Council and testifying here today have called on the City to create bail funds to subsidize people who cannot afford relatively low bail amounts. While the NYCLU supports bail funds as an interim step to mitigate the costly and unjust consequences of cash bail, bail funds are an unsound long-term strategy. It is backward for the government to levy a cost onto the indigent accused that it intends to cover or to ask the not-for-profit agencies that it funds to provide criminal defense services to cover. Some prosecutors have criticized bail funds, suggesting that when someone else pays and a defendant lacks a personal financial stake, there may be less incentive to appear. But the data from existing bail funds run by Bronx Defenders and others show that 98% of bail fund beneficiaries do appear despite the lack of personal financial stake. But the prosecutors have a point—if the defendant lacks a personal financial stake, what is the point of setting bail in the first place? There is none. The success of bail funds underscores the superior logic of abolishing cash bail. Cash bail costs the City, it costs the poor, and it doesn’t work. So who does benefit? The for-profit bail bond industry. Cash bail operates as a subsidy to that industry funded, in effect, by a tax on the poor. These companies charge fees, sometimes excessive fees, to post a defendant’s bond, have perverse incentives for defendants to forfeit their bond thereby creating long-term, crippling debt for the poor, and operate under an insufficiently rigorous system of state regulation.22 Four states and at least two localities have banned the involvement of for-profit, private bail bond companies in their bail systems: Kentucky; Wisconsin; Illinois; Oregon; Broward County, Texas; and Philadelphia, Pennsylvania.23 VI. RECOMMENDATIONS 1 The Council should join the call for legislators in Albany to amend New York’s bail statute to abolish cash bail for misdemeanor and non-violent felony offenses and create a presumption of release for those offenses. 2. As an intermediate step, the Council should fund training judges, prosecutors and defenders about New York’s bail statute and the rationale behind abolishing bail for low-level crimes. The lack of judicial understanding of the statutory purposes of bail and the provisions of the bail statute results in judges inappropriately defaulting to bail in its most onerous form—secured bonds or cash. 24 This hurts poor people, who do not have access to liquid assets, and increases reliance on the expensive for-profit bail bond industry, which creates long-term, crippling debt for the poor. 3. As an intermediate step only, the Council should support a city-wide bail fund to reduce the number of people incarcerated solely because they cannot afford small amounts of bail. 4.The Council should investigate the practices of the for-profit bail bond industry in New York City and consider whether further regulation of those practices is necessary. VII. CONCLUSION We thank the Council for the opportunity to offer testimony today on the importance of reforming bail. We look forward to continuing to work with the Council to ensure that our criminal justice system does not punish poverty and respects the presumption of innocence.
Footnotes 1 Memorandum in Support and Explanation of Criminal Procedure Law (S. Int. 7276, A. Int. 4561) (1970). 2 Mary T. Phillips, New York City Criminal Justice Agency, Research Brief No. 27, How Release Type Affects Failure to Appear (Sept. 2011) (hereinafter, “CJA Research Brief 27”) at 55-56. (finding that there are only a few percentage points difference in failure to appear rates between those released on their recognizance and those released on cash bail, and describing cash bail as having a “tiny overall effect” that explained “less than one percent of the variance in this outcome”). 3 John Feinblatt, New York City Office of the Criminal Justice Coordinator, Criminal Justice Indicator Report (Summer 2013) at 3 (available at http://www.nyc.gov/html/om/pdf/2013/criminal_justice_indicator_report_su...). 4 Under a scheme that permits the imposition of cash bail only in extraordinary circumstances, the District of Columbia releases 80% of pretrial defendants, holds 15% without bail, and releases 5% on monetary bail. See Leading the Field: District of Columbia Pretrial Services Agency FY 2008 Annual Report (available at http://www.psa.gov/sites/default/files/PSA-Annual-Report-FY2008-3.pdf). 5 Justice Policy Institute, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail (September 2012) (hereinafter, “Justice Policy Institute: Bail Fail”) at 40 (available at http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf) (reporting that D.C.’s Pretrial Service Agency reports that 88 percent of criminal defendants successfully complete the pretrial process by appearing in court and not being rearrested). The 2012 annual report from D.C.’s Pretrial Services Agency, which was released after the Justice Policy Institute’s report, showed that the percentage had gone up to 89% by the end of calendar year 2012. Pretrial Services Agency Congressional Budget Justification and Performance Budget Request, Fiscal Year 2014 (available at http://www.csosa.gov/about/financial/budget/2014/FY14-PSA-Budget-Submiss...). 6 The JFA Institute, Kentucky Pretrial Risk Assessment Validation (2010) at Table 1 (available at http://www.pretrial.org/download/risk-assessment/2010%20KY%20Risk%20Asse...). 7 Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low-Income Nonfelony Defendants in New York City (December 2010) (hereinafter, Human Rights Watch: The Price of Freedom) at 21 (available at http://www.hrw.org/sites/default/files/reports/us1210webwcover_0.pdf). 8 Human Rights Watch: The Price of Freedom at 2. 9 Vera Institute of Justice, Incarceration’s Front Door: The Misuse of Jails in America (Feb. 2015) (hereinafter Vera Institute: Incarceration’s Front Door”) at 32 (available at http://www.safetyandjusticechallenge.org/wp-content/uploads/2015/01/inca...). 10 See Tate v. Short, 401 U.S. 395, 398 (1971); Williams v. Illinois, 399 U.S. 235, 240-41 (1970); Smith v. Bennett, 365 U.S. 708, 709 (1961). See also Griffin v. Illinois, 351 U.S. 12, 19 (1956) (declaring that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has”). 11 See United States Department of Justice, Statement of Interest of the United States, Varden v. City of Clanton (Feb. 13, 2015) (available at http://www.justice.gov/file/340461/download). 12 Justice Policy Institute:Bail Fail at 16. 13 Human Rights Watch: The Price of Freedom at 21 (reporting that blacks and Hispanics account for 89% of all pretrial detainees in Rikers held on $1000 of bail or less). 14 Jennifer Gonnerman, Kalief Browder: 1993-2015, The New Yorker.com (June 7, 2015) (available at http://www.newyorker.com/news/news-desk/kalief-browder-1993-2015). 15 Robert Lewis, Bail Keeps Poor People Behind Bars, WNYC (Sept. 19, 2013) (available at http://www.wnyc.org/story/bail-keeps-poor-people-behind-bars/). 16 Vera Institute: Incarceration’s Front Door at 14. 17 Human Rights Watch: The Price of Freedom at 21 (reporting that in 2009 there were 98,980 total admissions to New York City’s jails, 51,047 of which were pretrial detainees incarcerated solely because they had not posted bail). 18 Human Rights Watch: The Price of Freedom at 2, 20-21. 19 Vera Institute of Justice: The Price of Jails: Measuring the Taxpayer Cost of Local Incarceration (May 2015) at 28-29 (available at http://www.vera.org/sites/default/files/resources/downloads/price-of-jai...). 20 Letter from New York City Independent Budget Officer to the Hon. Melissa Mark-Viverito (Sept. 30, 2011) (available at http://www.ibo.nyc.ny.us/iboreports/pretrialdetainneltrsept2011.pdf). 21 Human Rights Watch: The Price of Freedom at 2. 22. John Eligon, For Poor, Bail System Can Be an Obstacle to Freedom, New York Times (Jan. 9, 2011) (available at http://www.nytimes.com/2011/01/10/nyregion/10bailbonds.html?_r=0); Justice Policy Institute, For Better or for Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice (Sept. 2012) (available at http://www.justicepolicy.org/uploads/justicepolicy/documents/for_better_...). 23 Justice Policy Institute: Bail Fail at 42. 24 Human Rights Watch: The Price of Freedom at 17.