For as long as I’ve been practicing law in New York, judges have been tough on sentencing. Prosecutors ran the court room and set the terms for plea deals. Ninety-nine percent of the people arrested were indigent. Any misdemeanor, from urinating in the street to jumping a turnstile, resulted in bail being set and the defendant jailed for days, weeks, and even months.
But no longer will misdemeanor arrestees necessarily have bail set against them. From now on in New York, most people charged with misdemeanors will be released after arrest and given adjourn dates to return to court.
Many judges, prosecutors and politicians, steeped in the old system, are disturbed by that and complain about how “dangerous offenders” will be out on the street to commit more crime. They fear defendants won’t return to court and that New York City will become more dangerous.
But the sky is not falling. Let’s remember why this new legislation was enacted — what wrongs it’s meant to address.
The old jail-first, due-process-later system ignored the basic principle of the presumption of innocence. By jailing every indigent person charged with a crime, there’s an assumption they’re guilty. Because they couldn’t afford bail, indigent people often pled guilty just to get out of jail.
One of the criteria used to set bail was whether the person was undomiciled and had a “working phone” in his residence. That automatically disadvantaged the homeless and poor. Although that person would see a judge within 24 to 48 hours after arrest, if bail was set, that person would not see a judge again for at least seven days, if not longer. Each subsequent adjournment would be longer still, and a trial would not be scheduled for months. The maximum any defendant could get even on the worst misdemeanor is a “city year,” meaning eight months. For most people who couldn’t afford bail, pleading guilty was simply the quickest way out, not a reflection of whether they committed the crime.
Many misdemeanors relate to drug use, fare beats, and petit larcenies. They’re often crimes of poverty or substance abuse. Prison became the de facto poor house, homeless shelter, and mental institution for millions of low-level offenders.
The approach coerced thousands to take pleas. Once having developed a record, opportunities in life became more narrow, and a vicious circle began. Employers wouldn’t hire them. Getting housing, licensing, and loans became more difficult, and pleading guilty to the next offense became that much more easy.
Kids in their late teens from poor neighborhoods developed criminal records before they graduated high school. Many dropped out.
It was a tail-wagging-the-dog approach. Setting bail and keeping poor people in jail coerced faster pleas. The upside for the court was saving money. Fewer trials, judges, court officers, and attorneys were needed in a system where 99% of arrestees pled guilty. Everyone played his part — cogs in the wheel, putting poor people in jail and churning out pleas.
It became a de facto system of preventive detention with the philosophy: If we let them out, they’ll either commit more crime or not return to court.
But just because people are poor, doesn’t mean they won’t return to court provided they’re given needed support — a metro card, a place to sleep, and a reminder from their lawyer or the court. And if they don’t return, a warrant for their arrest will issue and they’ll eventually be brought back to court involuntarily. So, what’s the big fear?
Whenever change comes to a system as deep-seated and widely ascribed to as bail, people fear the worst. Remember when a non-Italian pope was elected back in the 1980s? People thought it would mean the end of the Catholic church. Granted, the church is having its problems now, but it’s not because John Paul II was Polish.
Things change, and often for the better.
The new system forces more help for indigent defendants up front. Because the court wants them to come back to court, the state is funding more programs to help make sure indigent defendants come back. This will take the form of housing, public benefits, mental health care, or substance abuse treatment — all services better provided sooner rather than later. Post-prison was never good at this task. Maybe front-loading the burden of assisting people who’ve been arrested get better situated in life, has a better chance.
So, let’s dial down the panic. The new bail system will cause fewer people to be incarcerated, develop records, and be torn from their communities. The presumption of innocence will actually begin to mean something for misdemeanor offenses.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.