Fixing New York’s Broken Bail System

By Justine Olderman, 16 CUNY L. Rev. 9, CUNY Law Review (Winter 2012)

New York City jails are currently filled with people who are serving time but haven’t been convicted of anything at all. They are there for one reason. They cannot afford the price of their bail. Bail is the single most important decision made in a criminal case. Bail is what determines whether someone will plead guilty or fight a case and whether he or she will receive a jail sentence or be given an alternative to incarceration. Spend a week or two representing people who are held “in” on bail and it will be obvious that the effect of bail on the outcome of a person’s case is only part of the problem. People sit in jail for days, weeks, months, and sometimes years waiting for their trial date. The effect on their lives and the lives of their families is nothing short of devastating.

For too long, the problem of bail has gone ignored–not just by people working outside of the criminal justice system, but also by those of us who work within it. Judges, prosecutors, and even defense attorneys have been complacent about the routine incarceration of people too poor to post bail. But thanks to the Human Rights Watch report on bail and panels like this, all that is changing.

The vast majority of the people coming through New York City’s criminal justice system are poor people of color from marginalized and under-resourced communities. And the vast majority of them cannot afford the price of their bail even when the bail may seem relatively low. For example, according to one study, 88.7% of people who had bail set at $1,000 could not raise the money to pay that bail at their first court appearance and so, instead of being released, were sent to Riker’s Island. In 2009, at least half of the people sitting in New York City jails were there simply because they could not afford the price of their freedom.