The Failure of New York's Bail Law

"BROOKLYN, N.Y.—Spend even a little time in Kings County Criminal Court, and a pattern to the proceedings quickly emerges. A person recently arrested in Brooklyn is brought before a judge to be arraigned. An assistant district attorney asks the judge to set bail. The judge, without asking whether the defendant can afford the payment, offers him two unworkable choices: Post the full amount of bail now or pay a visit to the bail bondsman, an expensive proposition.

Most are forced to default to a third option: Unable to put up the cash, the defendant is left to spend weeks and months—in some cases, even years—at the widely condemned jail complex on Rikers Island. There, the defendant awaits trial as one of more than 7,000 inmates—about three-quarters of New York City’s jail population—convicted of no crime and detained only because they can’t buy their freedom. The whole arraignment takes no more than a few minutes, and then it’s on to the next one.

Public defenders in Brooklyn are in the process of launching a new initiative intended to disrupt this pattern. When a judge sets bail that a defendant can’t afford, the Brooklyn Defenders Service will systematically challenge the judge’s order. If that fails, they’ll appeal it. The goal of the project is to begin to repair New York City’s long-criticized bail system by persuading and incentivizing judges to focus on bail’s essential purpose: It’s collateral meant to guarantee a criminal defendant’s return to court, not punishment for a person accused of a crime. At a moment when bail-reform efforts are gaining momentum nationwide, the initiative models a steady, case-by-case approach to challenging the status quo within the criminal-justice system. It also provides an object lesson in the limits of another, more traditional strategy: broad-sweeping legal change..."

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