The charge was possession of marijuana. It was not the first time Eric had faced a drug charge, but he says he had been out of trouble for a decade, until the evening this summer when Eric and a fellow student at their automotive repair school in Queens were taking a smoke break and the police rolled up. A search of the friend's car found some marijuana. Eric says it wasn't his. The friend says it wasn't Eric's. The court appointed lawyer who met Eric a few minutes before his arraignment told him the police report did not allege that Eric had any drugs on him, and advised his client to fight the charge.
But outside the lock-up, through the door and in Judge Ira Margulis' court room, many of those who were choosing to fight their relatively minor charges were facing the prospect of doing so behind bars. Sure, the judge was letting a good number of people out before tri al, ordering "release on recognizance," but in many cases he was setting bail, whether the charge was a felony or a misdemeanor. The bails were for the most part relatively small—$500 here, $1,500 there—but even that was too high for some to meet. One mother told her son's public defender that she could afford perhaps $200 to get him out on a misdemeanor drug possession charge; the prosecutor asked for $3,500, and the judge set bail at $1,500. A guy who turned down an offer of pleading guilty to a count of diverting prescription medications and being sentenced to the time he had already served had bail set at $1,500. Upstairs the inscription in the lobby quoted Disraeli: "Justice is truth in action." Down below in arraignment court, the price of freedom was somewhere between $500 and $50,000—cash or bond.
As any good lawyer would, Eric's defender laid out the stakes for his client. If Eric said he was guilty, he'd probably be sentenced only to the time he had already served since his arrest a day earlier. If he professed his innocence, it was likely bail would be set, and if Eric were unable to pay it, that could mean staying in jail until his next court date, five days away. In other words, saying he did nothing wrong would earn him more jail time than if he claimed he'd broken the law.
With work, school and a family to think about, Eric couldn't do that kind of time. His lawyer told the judge Eric wanted to plead guilty, and Margulis began the allocution, where he asks the defendant to admit to specific allegations, like, "Was it true that you were in possession of marijuana?"
"I didn't possess anything," Eric answered.
Margulis looked up. "Then I can't accept your plea," he said.
"OK. I possessed it," Eric shot back. "I have nothing to say. I just want this over with." His lawyer jumped in: "I've counseled [Eric] not to plead guilty to this. His concern is whether bail will be set."
Margulis wouldn't say. So Eric shook his head, barked "OK, I possessed it," and stepped out of the courtroom with a $160 court fee to pay, a six-month license suspension in his pocket and a Class B misdemeanor conviction on his criminal record that could disqualify him from having several types of jobs, obtaining certain government benefits and—at the very least—being able to claim ever again that he'd been out of trouble since 1997.
"I would have fought it," Eric said a couple weeks later. "It was just a matter of, I didn't want them to set a bail that I couldn't make there on the spot." He had about $120 on him. His fiancée could have brought more, but by the time she gathered up the kids and found her way there from eastern Long Island, he'd be back on Rikers. "Granted, a B misdemeanor—I don't want that on my record. But I just wanted to get out of there."
Some of those who had shared the lock-up with Eric didn't get out of there that morning. Court records indicate that one man arraigned the same day for possession of stolen property worth less than $1,000 was locked up for several days awaiting trial on $1,500 bail. People went back inside for at least some time before trial on charges like driving without a license and misdemeanor "menacing." But the guy alleged to have had 129 glassines of heroin on him got out right away; his buddies had $5,000 cash in hand.
In the 1960s, a New York City industrialist named Louis Schweitzer grew alarmed at the number of people being held in city jails before trial on minor charges simply because they couldn't pay their way out. He launched the Vera Foundation (now the Vera Institute), which ran the Manhattan Bail Project to study ways of getting more people released before their cases were tried. A 1964 report by Vera mapped out the national problem with bail. "Each year the freedom of hundreds of thousands of persons charged with crimes hinges upon their ability to raise the money necessary for bail," it read. "Those who go free on bail are not released because they are innocent but because they can buy their liberty. The balance are detained not because they are guilty but because they are poor."
Around the same time, a State Assembly committee found that pretrial detainees—those presumed innocent but kept behind bars, most of them on bails they could not pay—comprised 45 percent of the city's jail population.
In fiscal year 2006, that figure was 71 percent, with roughly 9,700 people who were detained but presumed innocent.
Evidence suggests that the majority of people in New York City's jails today have bail set in their cases but cannot pay it. And more than half of those who don't make bail over the course of a year are held on less than $1,000, suggesting that the crimes of which they are accused are minor—perhaps trespassing, marijuana possession or low-level assault. Many stand a chance of serving more time in jail awaiting trial than they would spend behind bars if found guilty.
New York State law says that a judge is supposed to consider only one thing when he decides whether to release defendants without bail or set bail in their cases: making sure they show up for their next court date. Bail is only supposed to be set to prevent court-skip ping, not to punish or prevent some future crime or get someone to plead guilty. But research on bail in New York indicates that bail decisions in the five boroughs bear, at best, an inconsistent relationship to defendants' risks of flight. Bail seems to be operating as something other than an incentive to show up in court. "Bail is a form of preventive detention for poor people," says Robert Gangi, executive director of the jails watchdog Correctional Association of New York. "They're mainly detained because they're poor. That's an important understanding to have: Whatever the theoretical justification for bail, that's what it really is."
It's an obvious truth that the poor have a harder time paying bail than the wealthy, and courtroom veterans have known for years that being detained before trial hurts your chances of winning acquittal or getting a lighter sentence if convicted. But the dynamics of the bail system are different in 2006 than they were in 1960. In an era of falling felony crime rates but rising arrest numbers, New York City's courts are increasingly dealing with low-level misdemeanor offenses that years ago might never have led to arrest, arraignment and bail. And at the same time, a growing litany of life con sequences—the loss of housing, ineligibility for some jobs, disqualification for government assistance—have been arrayed to target people found guilty even of petty crimes and non-criminal violations like disorderly conduct. People who get arrested today are likely to be accused of more minor crimes but face penalties for a conviction that go well beyond prison or probation. Bail can hasten those convictions regard less of guilt or innocence.
In other words, bail matters. If bails are being set too high, or bail is being set in too many low-level cases against people who can't afford even low bail, taxpayers, defendants and justice will suffer.
But while civil liberties activists critique police methods that lead to arrest and social policy advocates denounce the difficulties facing people getting out of prison, bail—a middle-ground between freedom and guilt—gets little scrutiny, even though it makes a deep mark on the criminal justice system in courtrooms in each borough every day.