Crain’s New York Business – Report: City pays big price for minor crimes

New York City could save tens of millions of dollars a year if it did not incarcerate thousands of defendants charged with minor crimes — like hopping a turnstile, smoking marijuana in public or trespassing — before their trials, according to a new report by advocacy group Human Rights Watch.

In 2008 alone, the city could have kept $42 million in its coffers, had it not locked up 16,649 non-felony defendants who were unable to post bail of $1,000 or less, according to the report. Among defendants arrested that year on misdemeanor charges with bail set at $1,000 or less, 87% were incarcerated because they could not afford the bail, the report said. The average stay in detention was 15.7 days.

City officials disagreed with the report’s main findings, arguing most of the misdemeanor defendants held while awaiting trial are locked up because they have prior criminal offenses on their records. The report cites data from the New York City Department of Corrections, which shows that the city could save $161 per inmate per day if the jail population were reduced by 800 or more.

“For people scrambling to pay the rent each month, finding $1,000 for bail can be as impossible as finding $1 million,” said Jamie Fellner, senior counsel with the U.S. program at Human Rights Watch and author of the report. “Sending people to jail for want of a few hundred dollars has nothing to do with fairness, crime control, common sense or fiscal prudence.”

More often than not, defendants locked up because of inability to post bail were black or Hispanic, largely because of the disproportionate rates of minority arrests in the city, the report said. Although blacks and Hispanics combined constitute only 51% of the New York City population, they compose 82.4% of all misdemeanor arrestees. And given the link between minority status and income in the city, blacks and Hispanics make up 89% of all pretrial detainees held on bail of $1,000 or less.

The report calls on the judicial system to revamp the way it treats defendants charged with minor crimes. Judges should take defendants’ financial resources into account when setting bail and should consider unsecured appearance bonds, it argues. And a pretrial supervision system should be considered for non-felony defendants who cannot afford to post bail. Such a system would cost taxpayers a fraction of what they spend to lock these defendants up. In New York state, for example, the annual cost of probation services is approximately $4,000 per probationer, while the cost per inmate in New York City jail is $76,229.

“When cash bail gets set without any consideration for the financial ability of the person in front of you, you’re forcing poor people to choose between pleading guilty to a case when they might be innocent or sitting on Rikers Island,” said Robin Steinberg, executive director of The Bronx Defenders, a nonprofit that offers free legal representation to Bronx residents accused of crimes. “Rich people never have to make that choice.”

Judges have leeway to set bail at affordable rates or to offer unsecured bonds, but it rarely happens, the report said. Those interviewed told Human Rights Watch they worry they’ll “end up on the cover of the New York Post for releasing without bail a defendant who then murders someone.” Placing defendants in jail pretrial leads to harsher sentences because they are more likely to accept a plea bargain, Ms. Steinberg said. Prosecutors, she said, know that it’s a rare defendant who will fight a case when they’re staring jail in the face, so they have incentive to ask for higher bail levels.

A city prosecutor source who was not authorized to speak publicly said first-time misdemeanor offenders are rarely forced to post bail. It’s reserved for repeat offenders, who create a backlog in the court system when they don’t show up for appearances, the source said. “My main concern is the report doesn’t break out repeat offenders,” the source said.
John Feinblatt, criminal justice coordinator for Mayor Michael Bloomberg, disagreed with the report’s contention that pretrial defendants should not be locked up. He said the decision not to release defendants is based on a scientifically validated system that predicts whether they’ll return to court or not.

“The real story of misdemeanors held pretrial is most have a history of prior convictions and warrants that could fill a phone book,” he said. Three-quarters of those charged with misdemeanors have previous convictions, and two-thirds of the convictions are for felonies, he added.

“People who can safely be monitored in the community to ensure they don’t fail to return to court or don’t commit crimes, we should supervise in the city,” Mr. Feinblatt said. “But people who have a history of prior convictions and warrants are probably not people you want on the street. The cost to both the city and individuals for future crime has to be the primary consideration.”

But Ms. Fellner, the report’s author, disagreed. “The purpose of bail is not supposed to be a sub rosa mechanism for getting people into jail,” she said. “Simply because people have long records doesn’t mean they should be in jail pretrial. It’s bad law and it’s bad policy.”
Brooklyn District Attorney Charles Hynes supported the recommendations in the report, especially the call for a supervised pretrial release program for defendants accused of non-felony crimes who do not have the financial resources to post bail.

“My office is committed to request bail only when it will ensure a defendant’s return to court to face criminal charges and never solely on the basis of the defendant’s inability to pay,” he said.

By Daniel Massey