New York City courts rely heavily on making defendants pay bail to get out of jail before trial. But thousands of inmates can’t, leaving taxpayers footing the cost of locking up thousands of people who could otherwise be released, according to a Thursday report. And critics say these figures don’t consider the full human toll of the practice, which heaps untold expenses on the city due to lost opportunity.
On any given day in the city, nearly 4,000 people are awaiting trial behind bars simply because they can’t afford to pay bail, finds an Independent Budget Office audit of pretrial defendants in the city. All told, the city spends $116 million each year incarcerating these individuals who have not been convicted of a crime.
The report uses 2016 data, which reveals that the overwhelming majority of pretrial detainees admitted to New York City jails last year were booked on misdemeanors and nonviolent felonies.
The audit also illustrates stark disparities in the population held at lockups around New York City. These facilities house nearly 10,000 people each day. Around 7,600 are being held pretrial and the rest have been convicted and are serving sentences of a year or less. Ninety percent of all pretrial detainees are men, and they’re largely young men of color.
Of all pretrial detainees booked last year, 72 percent were given the option to post bail. In other words, the courts decided that they were allowed to go free, so long as they could afford it. Many couldn’t, however, leaving them to languish behind bars either until their trial date ― a period that often stretches on for months or longer ― or until they could come up with bail money.
“On an average day 3,931, or 52 percent, of all pretrial detainees were being held because they had been unable to post bail, although at least some would likely be able to do so shortly,” reads the report, written by IBO Director Ronnie Lowenstein.
Facing the likelihood of prolonged confinement, many defendants feel pressured to plead guilty to charges, even if they didn’t actually commit a crime. In 2013, under 5 percent of cases processed in New York City were resolved in a trial. The odds of a case reaching a favorable outcome for the defendant greatly decrease if they are held before trial, studies show.
In New York City, many pretrial detainees remain jailed before trial even though they face only low-level charges. A full third of those unable to post bail at arraignment last year faced misdemeanor charges, according to the audit. Another quarter faced felony charges for drugs or other nonviolent offenses.
Lesser charges typically result in smaller bail amounts. But that doesn’t mean an easy path out of jail. For some defendants, just hundreds of dollars could have been the difference between freedom before trial and an indefinite jail sentence.
“The mean bail set for those unable to post bail immediately was $39,163 and the median bail was $5,000, indicating that for half of these individuals bail was $5,000 or less,” Lowenstein added.
Commercial bail bondsmen typically charge a nonrefundable fee of 10 percent of the total bail amount, meaning that $500 would cover a $5,000 bail.
The audit’s findings are likely to bolster calls for change from critics of money bail, who are fighting what they call a “two-tiered” system of justice that favors the wealthy and disadvantages the poor in jurisdictions around the nation.
New York City council member Rory Lancman (D), the chair of the Committee on Courts and Legal Services who requested the audit, said he found the results concerning.
“Today’s IBO report confirms that the vast majority of people on Rikers Island are there because they cannot afford bail, are overwhelmingly black and brown, and many are there for nonviolent, low-level offenses — all at enormous expense to taxpayers,” said Lancman in a statement. “It reaffirms the urgent need for [New York City] Mayor de Blasio to put in place a real plan to close Rikers Island.”
In March, De Blasio announced plans to shutter Rikers, the city’s largest corrections facility, within the next 10 years.
Although the audit establishes a $116 million figure for detaining people who don’t have the means to pay bail, it fails to capture the full human cost of this form of incarceration, says Scott Levy, special counsel to the criminal defense practice, the Bronx Defenders.
“Even short stays on Rikers can have devastating effects for our clients,” he told HuffPost. “The family and community ties are strained, people lose jobs, people lose houses, mental health issues are exacerbated, health care is disrupted, families are disrupted.”
With little evidence to suggest that keeping most of these defendants in jail before trial has any effect on public safety or crime rates, Levy said the city needs to rethink its approach.
“It’s costing the city a fortune, it’s costing our clients a fortune in lost opportunity and life disruption, which in turn costs the city untold money but also justice and resources,” said Levy. “And it’s not really clear what we’re getting for any of that.”
Not all of these cases involve short stays. The story of Kalief Browder, just 16 years old when he was arrested in 2010 for allegedly stealing a backpack, opened many people’s eyes to the controversial practice of money bail and pretrial incarceration. Although Browder maintained his innocence, his family couldn’t afford to bail him out. He remained locked up on Rikers for three years while he awaited trial, with much of that time spent in solitary confinement. In June 2013, a judge dismissed his case, allowing Browder to return home. Two years later, Browder hanged himself after a battle with depression.
Browder would have celebrated his 24th birthday later this month. His case continues to serve as a reminder of how the justice system operates differently for those who don’t have financial resources.
“For indigent people charged with offenses, the setting of bail is a de facto sentence,” said Levy. “You have no due process.”
Supporters of bail reform have been challenging the use of money as a condition for release in court systems around the nation. They argue that judges must take into account a defendant’s ability to pay before assigning bail. They also support changes, like those recently implemented statewide in New Jersey, requiring judicial officers to base pretrial release decisions upon a risk assessment of a defendant’s danger to the community and likelihood to return for future court dates. Although judges can hold defendants without bail, most are now released under their own recognizance, or under the supervision of a pretrial services program.
Judges in New York City have a number of alternatives to money bail at their disposal. This includes the option of supervised release, which de Blasio endorsed last year with a new pretrial release program. Although overall city jail populations have fallen in recent years, suggesting there may be some shift, bail decisions remain largely up to the discretion of judges who, for the most part, appear satisfied with the status quo.
That needs to change, said Levy.
“Most people, left to their own devices, will come back to court on their own without any conditions put on them whatsoever,” he said. “You can just release people and they will come back to court and they will have the ability to resolve their case as justice requires.”
Read the full audit below:
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