Chapter 6: Bail, Truth and Consequences

Lorin Duckman had few allies when he went down, perhaps with good reason. After all, he admitted to some of the in appropriate behaviors of which he was accused. But one of the alleged acts of misconduct for which Duckman was removed was an exchange with a prosecutor in which Duckman said: "Who stays in jail for not having $200? Poor people. That's not right . . . You deprive a person of his liberty; made them go to jail for five days because he didn't have $200. That's not right. Outrageous." From his current office in Vermont, where he works as a public defender, Duckman asks the kind of question that judges grapple with: "What does the Eighth Amendment [which prohibits ‘excessive bail'] mean right now? Does reasonable bail mean reasonable in terms of a number, or reasonable that the person can pay and that the person will recognize as an important figure?"

Judge Newton, the city criminal courts chief, believes her judges do not deliberately set bail that people cannot make. But while judges are supposed to consider a defendant's financial resources in setting bail, there is no explicit requirement for judges to make bail affordable for defendants. When prosecutors discuss the affordability of bail, it's usually only to stress the danger that it will be too affordable for wealthy people. "The only way it comes up is when a person has a great deal of money, you probably adjust it upwards," says Manhattan prosecutor Kindler.

On the lower rungs of the income ladder, however, even very low bail can be too high to make. Staten Island DA Donovan acknowledges this impact of financial conditions on release. "I do believe there are many people who are in jail because they didn't post a minimal bail," he says. "Some of our indigent defendants, their family and friends can't afford it either." Low bails are "tantamount to remand for most of our clients," says Saft from Brooklyn Defender Services. One of her agency's clients was jailed for three weeks on $250 bail for her first arrest, an assault case. "She was ROR'd finally," says the woman's lawyer, Elizabeth Latimer. "The case ended with a disorderly conduct plea and five days community service. She was pissed off."

The question is, what's the purpose of setting bail in cases like that? Critics don't think it's really to bring a person back to court. They think it's intended to coerce guilty pleas. Veterans of the system acknowledge that this occurs. "The judges and the DAs both do it," says Steinberger, the former Bronx ADA. At least one judge agrees. "That is certainly the case, unfortunately, and to me it's appalling," says Judge Z. "And it occurs, I think, more where a judge feels that this is a case that he's concerned about how many cases get pleaded out at arraignment so the statistics look good. Unfortunately, where low bail is set in cases where people cannot afford a $10 bail, it is to coerce a plea. And no one will admit that."

Coercing pleas is sometimes about the math. In New York, sentenced inmates typically serve two-thirds of their time. On a five-day sentence, an inmate might serve only three days. But a defendant who is held in on bail at arraignment might not be able to see another judge, who could release him, for five days. So if you're offered a five-day sentence in exchange for a guilty plea, you can say yes and go back inside for three days or say no and do five days behind bars. In other words, for short jail sentences, staying in jail to fight your case means you'll do nearly as much or more time as if you pleaded guilty.