When $500 Keeps 50,000 People Behind Bars
Special To Caribbean Times News
By Michael Derek Roberts
Every year in New York City, thousands of innocent people are sent and kept in jail only because they can’t afford to post bail sometimes as little as $500. This unjust and unfair bail system puts these “innocent until proven guilty” New Yorkers at risk of losing their jobs, custody of their children — even their lives. Here are the damning facts and statistics:
- 90 percent of people who cannot make bail are either Black or Hispanic.
- Half of all misdemeanor charges end in a non-criminal disposition (outright acquittal, violation or Adjournment in Contemplation of Dismissal).
- Defendants are nine times more likely to plead guilty to a misdemeanor charge if they cannot make bail.
- It costs New York City $475 per day to jail someone.
- New York City spends $42 million a year to imprison people being held on bail amounts of $1,000 or less.
The troubling thing is that of those in jails, 60 percent haven’t been convicted of anything. They’re innocent in the eyes of the law, awaiting resolution in their cases. Some of these inmates are being held because they’re considered dangerous or unlikely to return to court for their hearings. But many of them simply cannot afford to pay even the low bail that has been set.
Occasionally, these cases that border on the violations of human and civil rights do make the news. America was outraged when a Texas Black woman, Sandra Bland, was found dead in her after failing to come up with $500 bail for her release. But most bail abuses often unnoticed. That’s because the federal government doesn’t track the number of people locked up because they can’t make bail. What is known is that at any given time in a year, close to 450,000 people are in pretrial detention in the United States — a figure that includes both those denied bail and those unable to pay the bail that has been set.
But even that figure fails to capture the churn and turnover of local incarceration: Fact is that in any given year, city and county jails across the United States admit between 11 million and 13 million people. For example, in New York City, where admittedly, courts use bail far less than in many jurisdictions, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail. And while the city’s courts set bail much lower than the national average, only one in 10 defendants is able to pay it at arraignment.
To make it clear: Even when bail is set comparatively low — at $500 or less, as it is in one-third of non-felony cases — only 15 percent of defendants are able to come up with the money to avoid staying in jail often for extended periods. So in essence a $500 bail can be responsible for a family going homeless, a breadwinner losing his or her job and an entire community negatively impacted.
But bail was not always been a mechanism for locking poor people up. When the concept first took shape in England during the Middle Ages, it was emancipatory. Rather than detaining people indefinitely without trial, magistrates were required to let defendants go free before seeing a judge, guaranteeing their return to court with a bond. If the defendant failed to return, he or she would forfeit the amount of the bond. The bond might be secured — that is, with some or all of the amount of the bond paid in advance and returned at the end of the trial — or it might not.
The 1689 English Bill of Rights outlawed the widespread practice of keeping defendants in jail by setting deliberately unaffordable bail, declaring that ‘‘excessive bail shall not be required, nor excessive fines imposed.’’ The same language was adopted word for word a century later in the Eighth Amendment to the United States Constitution.
However, bail has evolved in America over the years and it has now become less and less a tool for keeping poor people out of jail, and more and more a trap door for those who cannot afford to pay it. Unsecured bond is now not part of the bail mehcanism and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front — what’s called ‘‘money bail’’ or ‘‘cash bail’’ — or pay a commercial bail bondsman to do so. For relatively low bail amounts — say, below $2,000, the range in which most New York City bails fall — the second option often doesn’t even exist; bondsmen can’t make enough money from such small bails to make it worth their while. Bail is now all about money and business.
But the bail jail horrors don’t stop there. NYPD cops on arrest quotas – even though they deny it all the time – arrest Black and brown kids in large numbers sticking them into jails and over burdening the already flawed judicial system. Teenagers are arrested for simple juvenile activities like riding their bikes on the sidewalk or urinating at a street corner or having a marijuana “roach” (half smoked joint) in their pockets.
The courts and overworked and bogged down with this constant stream of humanity facing judged with humungous workloads. So justice and fairness are compromised by the sheer speed of the arraignment processes that make it virtually impossible for the court to reach and make informed decisions. Prosecutors have nothing to go on but a subjective statement from the police and possibly a complaining witness, and defense lawyers know only what they’ve been able to glean from their brief interviews and perhaps a phone call or two with their clients.
So it’s in this hurried “make haste” moment, at the very start of a potential criminal case, before evidence has been weighed or even gathered, that a defendant’s freedom is really decided. The stakes are high, and not only for the obvious reason that jail is an unpleasant and often dangerous place to be. A pretrial stretch in jail can and do unravel the lives of vulnerable defendants in significant ways.
For example, Rikers Island guards were said to have used violence against inmates (many waiting hearings and in jail because they could not make bail) more than 4,000 times in 2017. Violence among inmates crammed in close proximity is also pervasive. A Department of Corrections document obtained by The New York Daily News reported 108 stabbings and slashings in the last year. Indeed, studies have shown that the long-term damage that bail inflicts on vulnerable defendants goes well beyond incarceration. Disappearing into the machinery of the justice system separates family members, interrupts work, and jeopardizes housing.
How Bail Works In NYC
When an individual is arrested in one of the five boroughs, they appear before a criminal court judge to be arraigned. At arraignment, almost half of all cases are resolved with a plea bargain or the case being dismissed. For the rest, the judge has the choice of releasing the person on his/her own recognizance (ROR) without requiring any money to be paid, or setting bail. Historically, judges have only used two forms of bail—cash and insurance company bail bonds. Both forms of bail require a defendant or his/her friends and family to pay money to secure his/her release.
With cash bail, a defendant or her friends and family must pay the full amount of the bond to the court and will get that money back regardless of whether the case ends in a conviction or an acquittal, so long as the defendant makes every court appearance. With an insurance company bail bond, a defendant or his/her friends and family pay a smaller amount of the bond—usually 10% of its face value—to a commercial bail bond company, plus put up some amount of collateral in the form of cash or property. The bail bond company then posts bail. With a commercial bail bond, at the end of the case the defendant won’t see a dime of the money put up—even if he/she makes all his/her court appearances and is acquitted or the charges are ultimately dismissed.
Annually, over 300,000 cases are arraigned in New York City’s criminal courts. Of the 168,000 cases that continue past arraignments, approximately 70 percent are RORed without any bail being set. It’s those remaining 50,000 cases that get caught up in our bail system. Ostensibly, the arraignment judge who set bail identified those particular defendants as posing some kind of flight risk. By setting bail, the thinking goes, if a person has a financial stake in her criminal case she will come to court to avoid losing that money.
However, academics and social justice advocates say that money, as the sole determinant of a person’s liberty is unjust. Half of all New Yorkers who have bail set don’t have the money to ever afford it, and for a variety of reasons many are not eligible for commercial bonds. The average bail set in New York City courts on a misdemeanor case is $1,000, and on a felony case is $5,000. For many New Yorkers, paying $1,000 bail, let alone $5,000, is beyond their reach. Held in pretrial detention at Rikers Island or other city jails, people suffer serious life consequences such as losing their jobs and housing. Beyond the human costs, the legal consequences of being detained pretrial are real. People held in pretrial detention may plead guilty just to get out of jail, or take pleas to misdemeanor and felony convictions that stay on their criminal records for the rest of their lives.
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