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A Broken Bond: How New York Judges Are Getting Around Bail Reform

https://www.thecity.nyc/2020/1...

When J.S. was arrested in April and sent to the city’s jail barge to wait for trial on armed robbery charges, his entire family was affected.

He could no longer visit his mother in the hospital, earn an income to support himself or help his girlfriend take care of her baby daughter.

The judge at Bronx Criminal Court set cash bail at $30,000, far out of reach for J.S., who asked that his full name not be published, and his family.

But they’d heard that recently passed reforms required judges to offer another form of bail: a “partially secured bond,” or PSB. These bonds allow someone close to a defendant to put up a refundable 10% deposit on the bond, if they are willing to be on the hook for the full amount if the accused skips trial.

A friend offered to front the money, but then backed out when she learned how high the PSB was: $50,000, 67% higher than the cash bail set.

His girlfriend instead scrounged up the $5,000 deposit and brought it to court. But the judge required complicated paperwork proving her income, and it took three court visits over the span of a month to get the bond approved.

J.S. wasn’t released until September, after nearly six months in jail during the pandemic — with his trial not yet begun, despite a constitutional right to a speedy trial.

“I kept thinking he was going to come home, and he wasn’t,” recalled his girlfriend, who asked that her name not be used. “My hopes kept getting let down.”

On the Front Line

Every year, thousands of New Yorkers like J.S. across the state are incarcerated before trial because they cannot afford the price of bail.

As part of a sweeping overhaul of the bail system aimed at reducing pretrial incarceration, the state legislature mandated in 2019 that judges setting traditional bail must also offer one of two alternative forms of bail designed to be affordable for low-income defendants.

But since the mandate took effect Jan. 1, judges across New York have seldom used one of these bail forms, “unsecured bonds,” and have set the other, PSBs, at dramatically higher rates than traditional bail.

“This practice essentially results in a tax on the poor.”

By setting PSBs at rates unaffordable for many defendants, criminal justice advocates and public defenders say, judges, who have complete discretion, have in effect nullified a program instituted by the legislature to free more poor people from jail.

“The battle for bail reform isn’t over, and right now, combatting PSB abuse is the front line,” said Martin Kaminer, founder of the Emergency Relief Fund, a bail fund that has been working on this issue.

Freedom Out of Reach

For decades, defendants in New York were usually offered a choice between two options.

One is cash bail, in which the defendant pays the court the full amount upfront and gets it back after their case is closed. The other is commercial bail bonds, in which the defendant pays a for-profit company a nonrefundable percentage of the bail amount and the firm provides a guarantee.

But many defendants do not have the funds to post cash bail, and the bail bond industry has been widely criticized for its non-refundable 10% premium as well as hidden fees, onerous requirements and exploitative practices.

Ben Fractenberg/THE CITY

Unsecured and partially secured bonds were meant to be more accessible alternatives. With an unsecured bond, which judges have rarely offered even after the mandate, the defendant pays nothing up front but is responsible for paying the full bond amount if they fail to appear at court.

With a PSB, someone — usually a family member — pays a deposit of up to 10% of the bond amount upfront, and is responsible for footing the rest if the defendant fails to appear in court.

Both partially secured and unsecured bonds enable substantially more defendants to make bail, according to a 2017 study by the Vera Institute of Justice that examined the rare cases in which either was set before bail reform.

The study found that the alternative forms of bail are equally effective in guaranteeing court appearance — which is the only legal purpose of bail in New York — as cash bail or commercial bonds.

In 2017, these alternative forms of bail were set at amounts similar to those of traditional bail. But since the mandate went into effect this year, according to data obtained by New York Focus, PSBs have been set at far higher amounts, out of the reach of many low-income defendants.

‘Concerning and Very Disheartening’

The Office of Court Administration shared data with New York Focus from Brooklyn Criminal Court, which has logged over 2,500 cases in which bail has been set since the mandate went into effect.

Unsecured bonds were set for only about 0.3% of those cases, and PSBs were set at an average of 140% of the commercial bond amount and 268% of the money bail amount.

The state isn’t expected to make comprehensive data on bail reform’s outcomes publicly available until the summer of 2021, as The Appeal reported last month.

But these results are likely roughly representative of the city as a whole.

Data from cases across Brooklyn, Queens and Manhattan, collected by New York County Defender Services and Court Watch NYC and reviewed by New York Focus, show that PSBs were set at an average of 144% of the commercial bond amount and 232% of the money bail amount.

These disparities were even greater before the onset of the pandemic, which has put pressure on judges to reduce the jail population. The Center for Court Innovation shared citywide official court data showing that in the first quarter of 2020, PSBs were set at 167% of the insurance company bond and 300% of the money bail amount.

“The data that you presented is concerning and very disheartening, especially considering how hard-fought the battle to get bail reform passed was,” said Assemblymember Latrice Walker (D-Brooklyn), the primary Assembly sponsor of the 2019 bail reform legislation, when New York Focus asked her about these findings.

“What that sounds like is an unequal administration of justice, and I will be looking into it further,” she added.

‘Defeating the Intent of the Legislature’

Walker’s scrutiny can’t come soon enough for one defendant accused of armed robbery who has been waiting in jail for his trial since January.

In early September, his brother, sister-in-law, and cousin took the day off work to come to the Queens Supreme Court and post a PSB for him. They brought $7,500 as a deposit — cash bail and the insurance company bond were both set at $75,000, and they’d assumed the PSB was as well.

But a clerk informed them that they’d missed a zero: Justice Barry Kron had set the PSB at $750,000 and so the required deposit was $75,000, the same amount as cash bail. If they’d been able to scrape up that much, there would have been no reason to take on the additional liability of a PSB rather than simply posting cash bail.

“The judge was purposefully ignoring the law,” said an advocate who had been guiding the family through the process and had accompanied them to court. “You cannot expect anyone to have $75,000, much less someone who has a public defender. It shows that ultimately, the purpose of bail is to keep poor people in pretrial detention.”

Kron did not respond to requests for comment.

Public defenders who work upstate say they’ve encountered similar issues. “I have had clients who have attempted to raise the funds to post the partially secured bonds,” said Karine Haselbauer, a public defender in Monroe County. “But to this date, none of them have been financially able to post such a substantial amount.”

Judges have “defeated the intent of the Legislature by setting the [PSB] bail amount so high that no one can post it,” said Timothy Donaher, the chief public defender of Monroe County.

As a result, thousands of defendants have either remained in pretrial detention or been forced to pay the 10% fee, often coming out to thousands of dollars, to a bail bondsman. Unlike a partially secured bond deposit, the percentage paid to the bail bond firm is nonrefundable.

“This practice,” Haselbauer said, “essentially results in a tax on the poor.”

Rejected for Being Too Poor

The practice of setting commercial bail bonds lower than partially secured bonds is keeping bail bondsmen in business.

“If heeded,” a 2019 Vera report on bail reform predicted, the mandate to set PSBs or unsecured bonds “will essentially spell the end of the for-profit bail bond industry in New York.”

But the report didn’t account for higher PSB prices.

High total amounts are not the only obstacles defendants face in trying to post PSBs. Judges almost always set the initial payment at the legal maximum of 10%, though they are permitted to make it lower. The data from Kings County Criminal Court shows that judges set initial payments at this legal maximum about 99% of the time.

Ben Fractenberg/THE CITY

Judges require multiple family members to cosign the bail posting, said multiple public defenders, even when one family member has sufficient funds on their own. And judges require extensive paperwork that result in more labor from public defenders and more court trips from family members, lawyers said.

Unlike money bail and commercial bonds, PSB amounts aren’t posted on the city Department of Corrections website, making it harder for family members to find out how much they are required to pay.

Courts do not accept credit card or check payments for PSBs, but instead require family members to bring them in cash. In Brooklyn, according to Legal Aid attorney Marie Ndiaye, families often have to wait eight hours in court to post PSBs. Court clerks, she added, are often unfamiliar with PSBs and routinely turn away family members attempting to post them.

And even when a defendant finds family members willing and able to pay the funds, judges often reject them for being too poor.

In one case before the Manhattan Supreme Court last month, a defendant’s cousin brought $40,000 to Justice Diane Keisel as 10% of the total PSB amount of $400,000.

After confirming that the cousin was an MTA station agent with an annual salary of $50,000, the judge remarked, “Your job is not going to generate $400,000 if he decides to walk,” and denied the PSB application, a court transcript shows.

But the Legal Aid Society notes that the legislation does not authorize judges to reject obligors for being unable to post the full PSB amount. Moreover, the law requires judges to consider the defendant’s financial circumstances before setting bail. If the PSB is set too high for the defendant’s family members to be able to pay the full amount, Krystal Rodriguez at the Center for Court Innovation argued, the amount was set inappropriately high to begin with.

New York Focus asked the Office of Court Administration whether it provides guidance to judges on setting PSB amounts. “We do not dictate how judges exercise their judicial discretion,” responded Lucian Chalfen, an OCA spokesperson.

‘They Should Be Held Accountable’

Public defenders and criminal justice advocates emphasize the urgent need to make PSBs more accessible. But strategic approaches for how to accomplish this vary.

Some propose a legislative fix to mandate that judges set PSBs at the same rate as the other forms of bail. But there are concerns that judges might respond simply by raising the price of traditional bail as well.

Others focus on the need to simplify and standardize the paperwork required for judges to deem obligors eligible.

Many advocates stress the importance of changing the judicial culture around PSBs, perhaps through internal training on proper procedures and accountability measures, or perhaps through contesting judicial elections. “Many judges are elected, just like I am,” said Walker. “This should be a topic of conversation, when people are running for office, that they should be held accountable to.”

Others argue the PSB issue points toward the need to work towards eliminating bail altogether, and reduce the considerable authority judges retain to determine pretrial sentencing.

“Judges get all hot and bothered around anything they claim limits their discretion,” said Katie Schaffer of the Center for Community Alternatives. “But what we’ve seen is that, given that discretion, they use it in opposition to the spirit of a new law in order to continue to incarcerate people pretrial.”