Bail burdens

Richard Jimenez was making what he guessed was his 100th trip to “the Boat,” the Bronx prison that is in fact a boat floating in the East River. Jimenez, director of Bronx operations for the charity bail organization Bronx Freedom Fund, travels at least twice a week to the prison to bail out pretrial inmates who don’t have enough money to post bail themselves.

Today he was on his way to bail out a person accused of a misdemeanor offense. Even for an expert like Jimenez, navigating the bail process in New York is no small feat.

It started with Jimenez hopping on a packed city bus for a 45-minute trip from the Bronx court to the Bronx jail. Stop after stop passed, until only one other passenger remained on the bus. Jimenez disembarked on an empty street where odors wafted from a fish processing facility on one side and a wastewater treatment plant and garbage dump on the other. Straight ahead was a long walk to the prison gate.

Jimenez waved to a guard, passed through a barbed wire fence, boarded the boat, and stepped into the bail posting office. The office was small, with eight chairs, an ATM, and no restrooms. (The nearest restroom was about a mile away, Jimenez estimated.) There was no officer at the bail window, which said, “DO NOT KNOCK ON THE WINDOW.”

So as usual, Jimenez stood and waited for someone to come along and help. Today it would cost $1,000 and take more than three hours total for him to post the bail, even with his paperwork already prepared. This time-consuming and sometimes expensive process, inconvenient for advocates like Jimenez, can be formidable for families and friends of inmates.

Bail is essentially a deposit a defendant puts down and receives back after making all court appearances. Those who can’t put down the deposit stay in jail. Under this system, the accused is presumed innocent yet may remain imprisoned, especially if he is considered a threat to the community.

On any given day in New York City, prisons hold about 7,000 people who cannot pay bail pretrial. Groups like the Bronx Freedom Fund argue that the system unfairly imprisons low-income defendants, separating them from family and jobs.

In New York, Jimenez’s group can legally post bail if inmates are facing misdemeanor charges and have a bail set at $2,000 or lower. Of those the charity fund has bailed out since it began in 2007, the organization says 96 percent made their court appearances and more than half had all their charges dismissed.

Even when family or friends do have money to bail out a loved one, the process here is archaic and contorted, relying on paper records and fax machines and hours of waiting at bail windows in the city’s far-flung prisons. Fax machine is down? Try again next time.

The bail system is broken outside of New York too. Nationally there’s a movement in state legislatures and local governments to reform or even eliminate bail. Reformers argue that the system is outdated and an unconstitutional burden on those who cannot pay. Stuck in prison, many will plead guilty to lesser charges rather than wait months for a trial.

“Bail can be used properly, but it is not in fact being done so,” said Craig DeRoche, who heads up advocacy efforts at Prison Fellowship and supports bail reform efforts. Bail in many states is violating the Eighth Amendment, which prohibits “excessive bail,” DeRoche said. “If you are not deemed to be a risk, bail should be a very easy and straightforward process.”

New Jersey voters in 2014 passed a ballot measure to eliminate cash bail almost entirely, replacing it with a risk assessment system that incarcerates those who are a threat to the community or a flight risk. The law went into effect in 2017, and over the course of last year the pretrial jail population dropped 20 percent. The data on how many made court appearances isn’t available yet.

Bail procedures vary widely around the country. In one notable case in San Francisco last year, a judge set a $350,000 bail for a man accused of stealing $5 and a bottle of cologne. The man, Kenneth Humphrey, has now sat in jail for almost a year awaiting trial. An appeals court ruled earlier this year that the bail was unconstitutionally high and ordered another bail hearing.

“The process is the punishment,” said Ben Barton, a law professor at the University of Tennessee at Knoxville. “The process is wringing everything out of people it can.” Barton suggests that courts just need to adopt available technology: ankle bracelets. In the old days, he said, a large chunk of money might have been necessary to keep someone from fleeing the country—but now technology can track them. That “would be better for everybody except the bail bondsmen.”

The major trade group that underwrites bail bonds, American Bail Coalition (ABC), has one idea of its own: It proposes that bail bond customers contribute a per-bond fee to a legal aid fund that would serve lower-income people who can’t afford bail.

Jeffrey Clayton, the head of ABC, has been busy traveling the country to lobby. “In terms of politics, we’ve been locked out of this debate,” he said. His argument is that states will discover that the bail bond system is uniquely suited to getting people to return to court: Charity bail funds won’t go track someone down in Mexico, and bail bond companies “mitigate risk” financially. (Other bail defenders note the practice has pre-Colonial roots.)

“The proof,” Clayton said, “is in the pudding.”

Jimenez was making his own pudding in the Boat’s cozy bail bond office, where someone had finally come up to the window and pulled aside a small slat to talk.

“Hi, officer, how are you?” Jimenez opened.

“I’m here,” the woman responded gruffly. Jimenez named the person he wanted to bail out and asked the officer to check whether the inmate had any outstanding warrants (one item on the checklist he has to go through). Jimenez also handed over the necessary paperwork.

With the bail process rolling, he went into the prison to meet with the person he was bailing out, partly to remind the inmate to stay in touch with the Bronx Freedom Fund about court dates. Jimenez’s conversation with the inmate lasted about 10 minutes, but the process to see him took more than 1½ hours. Jimenez isn’t an attorney, so he couldn’t discuss the man’s case with him. He didn’t know what the man was charged with except that it was a misdemeanor.

Meanwhile in the bail office, two men came in, one clutching a dollar bill to bail out his friend. In New York, when someone has multiple cases pending in the system, judges may put $1 bails in place on minor cases if the bail in a larger case seems sufficient. Several people mentioned to me that they recalled prison ministers and rabbis posting $1 bails for inmates in the past.

No one was at the window, of course, and the men stood waiting for 10 minutes. One eyed the sign warning against knocking. “You just supposed to wait?” he asked. (He didn’t want his name on the record because he himself was on parole.)

An officer finally came to the window, and the man said he wanted to pay his friend’s $1 bail. He had the inmate ID number written on a cigarette box, which he thought was all he needed, but no—the officer informed him it would take four to six hours to get the needed paperwork. The two men debated what to do for a few minutes, then left without paying.

Jimenez finally returned, but the officer had moved on from the window. He waited several minutes again. The officer returned, and from this point it took him only 20 minutes to post the $1,000 bail. Receipt in hand, he walked a mile back to the bus stop, three hours after he left the courthouse. The Boat released the inmate two hours later, a much shorter wait time than the previous day, when Jimenez said it took nine hours for release after bail posted.

LATER THAT WEEK in the Bronx Criminal Court, Judge Michael Hartofilis was hearing a series of arraignments—hearings of charges where he would set bail or release the accused on his own recognizance (some jurisdictions have separate bail hearings before arraignment). The dozens of arraignments in the course of the judge’s day shift included charges of theft, drug possession, assault, and failure to complete community service. Family members filtered in and out of the courtroom.

For arraignments in the Bronx, public defenders typically have just a few minutes with the clients before the hearing. If attorneys have time, they might place a call to a family member to determine ability to post bail or to find out what community support is available to ensure the accused returns to court.

Anton Robinson, an attorney with the Vera Institute of Justice, sat in the courtroom. He’s working on a project to get judges to set lower bails or use different forms of bail more in line with what people can afford. When called upon, he and other Vera staff will interview suspects to assess their ability to pay.

“You have to get people to understand that lower amounts of bail will [keep people returning to court],” Robinson murmured from the back of the courtroom.

New York and some other states have alternative bail options, such as partially secured bonds, where a defendant (or their surety) pays the court a small percentage of a bond and is liable for the full amount if he fails to appear. Vera followed 99 cases in New York where judges set partially secured and unsecured bonds, rather than the traditional cash or bail bond. Most of the 99 were able to make bail in those alternative forms, and 88 percent returned to court. A third of those released pretrial had their charges dismissed, and one-fifth ended up with a noncriminal conviction.

This morning officers brought before the judge one young man accused of punching someone and stealing his iPhone. The young man cast a look back to the courtroom seats where his mom was sitting. The defense attorney argued video showed that the accused was simply a witness to the crime, which occurred in a large group. He had no criminal record, and the defense asked for his release pending trial.

The judge wanted information on hospitalization of the victim from the prosecutor—a way to determine how serious the assault charge was. The prosecutor had no information, except that the victim reportedly had bruising around his eye and nausea. The judge set bail at $5,000 bond, $2,500 cash.

The mom, sitting by herself, started crying quietly and covered her mouth as she tried to stop. The hearing lasted about three minutes, and officers took the young man in handcuffs out the back door. Charity bail funds here can only cover misdemeanors and cash bail up to $2,000.

“This is a case where we should have done the assessment,” said Robinson, frustrated, noting that the mom perhaps could have been a surety for a partially secured bond.

A researcher working with Robinson had stepped out of court to visit the bathroom, where she found tucked in the stall door a business card for Allison’s Bail Bonds, a licensed state provider, with the tagline, “Let us get you before your cellmates do.” She mentioned it to Robinson, and he shook his head.

Shortly after, a case came up of a man accused of selling $100,000 in counterfeit merchandise. Prosecutors asked for a $20,000 bail. Defense attorney Gaynor Cunningham from the Legal Aid Society asked for the defendant’s release. The accused had no criminal record, and he worked two jobs in New York, so he wasn’t a flight risk, she argued.

Cunningham had called the defendant’s boss, who said he would be able to gather $1,000 from the community for bail if necessary. It would be “taxing,” Cunningham said, but “he has people around him to post bail.” The judge set bail at $5,000 bond, $2,500 cash.

“That was a good bail pitch,” Robinson nodded.

Judge Hartofilis released about half of the defendants on the day’s docket with no bail requirement: Most were accused of minor violations like disorderly conduct. One could have qualified for charity bail from the Bronx Freedom Fund.

At 5 p.m., the day shift ended. Hartofilis filed out, and the court officers and clerks grabbed their thermoses and jackets. Night court was about to begin, with arraignments continuing until 1 a.m.

(Update: This story has been changed to clarify Anton Robinson's comments.)