Chapter 3: Anatomy of The Bail Decision

Research by CJA indicates that the prosecutor's bail request is the "most important factor"—more important than criminal history or charge severity or anything else—influencing the judge's decision of whether to set bail, and the "only important factor" shaping the amount of bail set. But recent analysis by CJA of prosecutor bail requests found no consistent link between the amount of bail requested by prosecutors and the likelihood that a defendant would return for trial.

A tough task faces prosecutors in arraignment court. As case after case is called, the ADA has to scan each defendant's rap sheet, skim the police report and digest the CJA recommendation. Sometimes there are open warrants to look at and out-of-state criminal records to contemplate, all while the ADA—often young and inexperienced, because it's where newcomers to the DA's office land—is gathering up the motions and notices she has to serve and deciding on whether to offer a plea deal and whether to request bail.

"Our people have about a minute to try to digest all of those things," and must do so 50 to 60 times a day, says Staten Island District Attorney Daniel Donovan. That's not hyperbole; the volume really can be that high. Adding to the difficulty is the fact that "so much of that information that we're required to base our information on is actually provided by the defendant," Donovan says. "We know the rap sheet, the evidence; we're gonna know if we found the gun in your house, if there were eyewitnesses. But we're going to know only from you regarding your family ties, your employment, your financial means, whether you have a phone or not. All that comes from the defendant," he says. "The most difficult things you are going to do as a prosecutor is select jurors and come up with an articulate reason for making a request for bail," Donovan adds. "This is not a science. This is an art. This is a feel. If some young assistant were to say, ‘We have a weak case, let's set high bail,' an experienced judge is going to just laugh."

Donovan's assistants must get bail requests approved in advance by a supervisor. In Manhattan, "we don't have formal guidelines on what people ask for bail," says James Kindler, the chief assistant district attorney, although he adds that, "normally we wouldn't ask for bail on a minor offense unless someone has a significant criminal record." In the Bronx, bail gets covered in the three week training course that assistant district attorneys complete before they enter the courtroom. "Obviously, even with guidelines it takes some experience to get it right," Bronx District Attorney Robert Johnson says, "but essentially, you're starting off with the statute and then you're assessing the strength of the case. I think some of the most significant factors are if the person has a past war rant history, if a person doesn't have ties to the community."

Indeed, in more than 250 arraignments that City Limits Investigates witnessed over eight days and one night of court action spread around the five boroughs, prosecutors often referred to defendants' "extensive contacts with the criminal justice system" and any "bench warrant history." With hundreds of thousands of such war rants outstanding, there's a lot of that history out there. But prosecutors also frequently cited merely "the nature of the case" in asking for financial conditions on a person's liberty.

Court observers can only see what a prosecutor says, not what she's thinking. Former prosecutors give some insight to how ADAs approach the bail request.