New York Law Journal: Lippman Lauds Bronx Group’s Nonprofit Approach to Bail Defenders

Chief Judge Jonathan Lippman (See Profile) last week praised as a way “to take the profit motive out of bond making” the program of a Bronx legal assistance organization that used charitable contributions to keep its indigent clients out of jail as they awaited trial.

Lippman’s endorsement came as The Bronx Defenders prepared to resume operations of its Freedom Fund Project, which were halted more than three years ago by a Bronx judge but was resuscitated by legislation passed last year.

Lippman made bail reform a centerpiece of his state of his judiciary speech (NYLJ, Feb. 6). In a message that offered several proposals for reforming the system, he criticized bail bond businesses that he said saw little profit in providing small amounts of bail.

But he said the non-profit Freedom Fund had helped about 160 defendants win their release from 2007 to 2009 by posting $1,500 or less in bail, small amounts that were beyond the capacity of many indigent defendants to raise.

“The fund reports a 93 percent appearance rate for participating defendants,” Lippmann said. “In the days ahead, we should be considering approaches like this in other parts of the state and with larger bail amounts.”

Human Rights Watch reported in 2010 that 87 percent of the defendants with bail of $1,000 or less were incarcerated in New York City because they could not afford bail. The defendants spent an average of almost 16 days in jail awaiting trial.

According to the New York City Criminal Justice Agency, which reviews the suitability of bail in most criminal cases, only 44 percent of defendants can meet bail at the amount it is set.

The Freedom Fund was established because lawyers of The Bronx Defenders were frustrated by that situation.

“The central mission is to try to post bail for those least able to afford it and most likely to return to court,” said Robin Steinberg, executive director of the Bronx Defenders. “I was both surprised and delighted and I really appreciate the fact that the chief judge recognizes that there are certain kinds of reforms in bail and one is a freedom fund.”

The fund was launched in 2007 by Steinberg and her husband David Feige, a founding member of the Bronx Defenders, as a pilot project funded mainly by the Joseph and Claire Flom Foundation and the Charles Lawrence Keith and Clara Miller Foundation (NYLJ, Dec. 7, 2007).

It posted bail of up to $1,500 for defendants charged with misdemeanors or nonviolent felonies who were considered to have a low risk of fleeing while their cases were pending. The project worked as a revolving fund where bail posted by the project was returned to cover other defendants’ bail as people reappeared in court to have their cases decided.

Steinberg said the high percentage of people who returned to court to face adjudication of their cases showed what she said was an “enormous amount of adherence to authority” of the court.

However, in 2009, acting Bronx Supreme Court Justice Ralph Fabrizio (See Profile) effectively halted the activities of the fund. He decided in People v. Miranda, 24 Misc. 3d 1223(A), that it had not registered in a timely fashion with the state attorney general as a charitable group nor obtained a state license to operate as a “bail bond business” as required under state Insurance Law.

He ruled that the Freedom Fund Project had essentially been operating as an uninsured bail bond business.

Governor Andrew Cuomo breathed new life into the freedom fund concept when he signed A10640/S7752 into law last year, permitting the creation of not-for-profit bail organizations under state Insurance Law §6805 that are authorized to post up to $2,000 for the bail of poor defendants charged with misdemeanors (NYLJ, July 19, 2012).

The measure added oversight responsibilities of the charitable bail groups to the state Department of Financial Services after Cuomo vetoed a similar bill in 2011, complaining that it had failed to provide proper state regulatory monitoring of the organizations.

The new law restricts a charitable bail fund’s activities to one county, or up to five contiguous counties if the groups are to operate in New York City.

Steinberg said the Bronx fund is gearing up to begin providing bail money again for indigent defendants once the state completes promulgating rules under the 2012 law. She said the group will probably raise its ceiling for bail to the $2,000 permitted by the statute.

Steinberg said she hopes the resuscitation of the project, plus its mention in Lippman’s State of the Judiciary address, will prompt renewed interest in the concept.

“I think the city of New York could set up a bail fund,” Steinberg said. “Anybody could do it: public defenders, law schools, law school clinics. There are all sorts of possibilities.”

So far, Steinberg said she knew of no other charitable organization that plans to offer bail.

Marvin Ray Raskin, the cochairman of the criminal section of the Bronx Bar Association, said, “To an indigent person, $500 bail might be the equivalent of $5 million bail to an affluent person. In either case, it’s a difficult if not impossible sum to meet.”

David Jakab, operator of the Manhattan-based David Jakab Bail Bonds, said it is “definitely not true” that bail bondsmen will not write bail for less than $1,000.

“I service bonds starting at $500 and will do $500, $750, $1,000, whatever,” Jakab said. “I have no problem doing that because it builds my client base. I do them all the time.”

Fabrizio’s decision in Miranda also alluded to ethical concerns raised by prosecutors about the The Bronx Defenders’ participation in the Freedom Fund.

The judge noted that the American Bar Association, in ABA Formal Opinion 04-432 from 2004, discourages defense lawyers from posting bond for clients except in “rare circumstances” and where there is no possibility that attorneys would profit by their actions.

Fabrizio also said that the New York State Bar Association Committee on Professional Ethics advised in NY Eth Op 647, 1993 WL 560287, that an attorney cannot act as a paid bail bond agent for his own clients. But, Fabrizio added, the same opinion said an attorney can be a paid bail bondsman for a non-client. The Freedom Fund only offered bail to clients.

Lippman said in an interview after his speech that he was not troubled by ethical concerns.

“I don’t see any inherent conflict,” Lippman told reporters. “They are using grant money. Do I think it’s more or less ethical than having them go pay money to a bail bondsman to get out, money that [defendants] don’t have and that if they can scrape up the money, that’s how they get out? If I look at the ethics or what’s right and just, this [charitable bond] scenario makes a lot more sense.”

By Joel Stashenko