New York Times magazine highlights link between bail and pleas

This cover story from today's New York Times magazine is headlined "The Bail Trap," and this pull-out quote appearing in the article captures why sentencing fans ought to pay attention to bail reform efforts: "Across the criminal-justice system, bail acts as a tool of compulsion, forcing people who would not otherwise plead guilty to do so."  Here is a bit more from a lengthy article that merits a full read:

In 1689, the English Bill of Rights outlawed the widespread practice of keeping defendants in jail by setting deliberately unaffordable bail, declaring that "excessive bail shall not be required, nor excessive fines imposed."  The same language was adopted word for word a century later in the Eighth Amendment to the United States Constitution.

But as bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it. Unsecured bond has become vanishingly rare, and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front — what’s called "money bail" or "cash bail" — or pay a commercial bail bondsman to do so. For relatively low bail amounts — say, below $2,000, the range in which most New York City bails fall — the second option often doesn’t even exist; bondsmen can’t make enough money from such small bails to make it worth their while.

With national attention suddenly focused on the criminal­-justice system, bail has been cited as an easy target for reformers.  But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning.  Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments.  New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution.  If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed.  By encouraging poor defendants to plead guilty, bail keeps the system afloat....

In early 2013, Jonathan Lippman, chief judge of the State of New York, decided that the business­as­usual approach to setting bail could not be tolerated any longer. "We still have a long way to go before we can claim that we have established a coherent, rational approach to pretrial justice," he said in his annual State of the Judiciary address. "Incarcerating indigent defendants for no other reason than that they cannot meet even a minimum bail amount strips our justice system of its credibility and distorts its operation." Lippman sent a package of proposed legislation to reduce the reliance on cash bail to lawmakers in Albany, and he lobbied for the reforms hard in the press. His efforts went nowhere. "Zero," Lippman says, shaking his head. "Nothing." Lawmakers had no appetite for bail reform.

Two years later, that may be changing. This summer, the New York City Council took a tentative step toward reform by earmarking $1.4 million for a citywide fund to bail out low­-level offenders. The fund, proposed with much fanfare by Speaker Melissa Mark-­Viverito in her State of the City address in February, is modeled on a number of smaller bail funds around the city. The oldest of these, the Bronx Freedom Fund, was established in 2007 in association with the Bronx Defenders, a public­-defender organization. The founders shut down the fund after only a year and a half, after a judge argued that it was effectively operating as an unlicensed bail­bond business. But before they did, the fund bailed out nearly 200 defendants and generated some illuminating statistics. Ninety-­six percent of the fund’s clients made it toevery one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund’s clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.