No backing down on bail now
In 1947, New York’s highest court declared that the amount of bail “must be no more than is necessary to guarantee [defendant’s] presence at the trial.” The use of unaffordable bail as a form of preventive detention — to prevent future crimes — was expressly rejected. This principle has been reaffirmed repeatedly by the Court of Appeals — as recently as 2008.
The practice, however, has been very different. In the 36 years I have been practicing law criminal courts, I have witnessed nearly every judge ignore this law is nearly every case, imposing bail precisely out of a concern over “public safety.”
The results have ruined the lives of tens of thousands of people who are presumed innocent in the eyes of the law. Detention prior to trial exacts immediate social and economic consequences — loss of employment, familial loss of income and disruption and trauma to the lives of children.
Confinement in pre-trial detention is psychologically damaging in its sudden exposure to brutality from prisoners and guards alike.
Legally, the consequences are also profound, and profoundly damaging. Those who are detained prior to trial are more likely than those on bail to take plea bargains, accept worse plea bargains, and are more likely to be convicted at trial.
Despite these consequences, and despite the express illegality in this state of considering future danger as a criterion, judges have conducted their own decades-long social experiment with preventive detention. At hurried criminal arraignments, after hearing short arguments from both sides based on the few facts known about the offense and offender at the beginning of the case, judges made seat-of-the-pants decisions about future dangerousness.
No psychological screenings were performed, no objective prognostic instruments were used, and no data were adduced as to the factors that are reliable predictors — after all, these criteria were never, under state law, permissible considerations.
Instead, the vagaries of individual judges’ “feelings” about offenders and their charges, with an eye on the news coverage, dictated bail decisions that often became determinative of the ultimate legal outcome in cases. All done in a proceeding lasting no more than five minutes. This utterly arbitrary and plainly unlawful practice, in its universality, became enshrined as “judicial discretion.” It was stoutly defended by prosecutors and appeals courts.
To put it another way: Judges afraid of winding up on the front pages like “Turn ‘Em Loose Bruce” would lock people up before trial if they had a hunch that they might re-offend. And most of New York City just went along with it.
A few years ago, after one particularly high-profile and wealthy defendant was released on bail, another judge privately commented that he would never have taken that risk. In another high-profile case that I handled, the defendant, who was poor and arrested in his brother’s apartment surrounded by drugs and guns, had prohibitive bail set despite the fact that he was no flight risk — he had nowhere to go and no means to get there.
The bail reform laws enacted last year eliminated judicial discretion for many cases in order to prevent exactly these types of injustices from recurring. Judges proved, over decades, that they could not be trusted.
Bail was restored to its exclusive role of making it reasonably certain the defendant will appear. And in today’s world of electronic monitoring, electronic trails, omnipresent cameras and cellphone tracking, only the wealthiest and best-connected have any ability to flee and stay gone.
The new law is less than 30 days old. Before it even went into effect, many of the same people and the same institutions that fought any reform of the cruel, long-existent system began pronouncing the new law a failure. And thanks to a few tabloid headlines about people who committed crimes after being released, the ranks of people chanting “reform the reform” have grown.
They have done enough harm over the past two generations, advocating for improper use of bail and conniving at its illegality. They have destroyed enough lives and promoted enough mistrust of the justice system. They deserve to be ignored.
Kuby is a criminal defense attorney.