Why Setting Bail Can Make Or Break A Case

The law says that everyone is presumed innocent until proven guilty, yet for poor people unable to afford bail, the opposite is true.

The first few days of a criminal case are often the most important.  That’s when a police officer decides whether to drag the person arrested into the precinct in cuffs or merely give him a summons to appear in court.  It’s also when a judge determines how much bail (if any) should be set.

For many, the bail decision impacts whether the defendant will stay in jail the rest of his case or be free to fight the allegations from the outside.

The law says that everyone is presumed innocent until proven guilty, yet for poor people unable to afford bail, the opposite is true.  They often serve their punishment up front and sometimes even plead guilty to something they didn’t do, just to get out of jail sooner.

Waiting for trial can take longer than the maximum sentence for the crime.  But once a defendant pleads guilty to a crime, whether he did it or not, he develops a criminal record.  That record will then compromise his ability to get jobs, housing, professional licenses, etc.  In short, pleading guilty begins a vicious cycle that will forever undermine his ability to function fully in society.

I’ve seen this happen repeatedly, and each time it frustrates the hell out of me to see someone plead guilty just to get out of jail even though he might have won his case at trial.

With an eye toward this problem, New York last week joined a small group of states that have changed their rules on bail.  Starting in January 2020, no bail will be set on most misdemeanors and non-violent felonies.  This and other much-needed reforms (like compelling prosecutors to give defense attorneys discovery on their cases before a jury is at the door) will begin to shift the chokehold of power prosecutors held over the criminal justice system for decades.

Police will begin to issue Desk Appearance Tickets (DATs) for most misdemeanor allegations and non-violent felonies.  That means that instead of spending a night in jail before seeing a judge, people arrested for low-level crimes will get dates to return to court, reducing the risk they’ll miss work, lose child custody, or get kicked out of housing.

Sponsored

In announcing the legislation, New York Governor Andrew Cuomo said the new approach will reduce the prison population by 90 percent, demonstrating just how many people have been in jail merely because they were too poor to make bail.

Being out of jail (rather than incarcerated) increases the odds a person can win his case.  First, district attorneys are quicker to prosecute people in jail.  The “out” defendants get shifted to the back of their caseloads and just might slip through the cracks. (There’s always hope.) Also, once out, a defendant can show he’s changed his ways.  He can go back to school, pay child support, or find a job.  This puts him in a better position to ask for a less punitive plea deal, one that might not include jail at all.

He’ll be able to visit his attorney more often.  He can find witnesses and help develop investigative leads.  In addition, he’ll be able to have a more normal life — working, being with family, attending rehab, sleeping better, dressing how he wants.  In short, he’ll be better prepared to make cogent decisions about what to do with his case.  He’ll also have less incentive to plead guilty if that plea mandates jail.  Who wants to go to prison if there’s even a small shot at winning?

That worries prosecutors.  One of the primary tools they use to persuade a defendant to plead guilty is a promise of a shorter jail sentence if he admits guilt early on in the case.  But if a defendant is already out of jail, that incentive to plea early is lost.

Having to do more trials requires more work, more preparation, and more triage.  In a system where the sheer volume of arrests has, in the past, created an assembly line of guilty pleas without much emphasis on the prosecutor’s burden of proving his case beyond a reasonable doubt, the new law presents a sea-change in how they’ll have to approach their work.

Sponsored

Police and prosecutor associations are already decrying the changes, contending crime will rise. To be clear, however, New York has not abolished bail.  Judges will still set bail for people who have track records of not returning to court; who have open warrants; who are accused of certain crimes; who have prior felony convictions; or in cases where they believe that “release on the principal’s own recognizance will not reasonably assure the principal’s return to court.”  That’s a pretty big exception, and certainly one many prosecutors will argue applies.

Like any new system, kinks will need to be worked out.  Indigent defendants who are homeless and/or mentally ill will need help, once out of jail, to find housing, stay out of trouble, and get back to court.

But with the right programs in place, the changes will benefit everyone.  The new rules give people arrested the benefit of the presumption of innocence and recognizes that the decades-old approach of “build more prisons and add more punishment” is neither cost-effective, fair, or working.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.