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Read CJA’s Testimony at City Council Hearing January 17

Posted on Jan 18, 2017

The following is the testimony of CJA Acting Executive Director Peter Kiers at the City Council hearing on legislation sponsored by Council Member Rory Lancman “in relation to requiring certain types of bail recommendations.”  The proposed bill would require evaluation of defendants’ ability to post bail. 

As you know, the NYC Criminal Justice Agency (CJA) is an outgrowth of a 1961 demonstration program of the Vera Foundation for the purpose of eliminating the sole dependence on money bail to achieve pretrial release.  The developers of the project rightly realized that the reason why jails were full was because arrested persons could not afford the bail.  Persons who could afford the bail were released, while those who could not afford the bail were left to sit in jail.  Money was the deciding factor.

The Manhattan Bail Project demonstration was a success using interpersonal contact to reach out to a defendant and see his or her individual personal characteristics and community ties.  Today, using more sophisticated assessment, CJA interviews defendants arrested and held by the Police Department, and produces an informational and release recommendation report for the Court, which is distributed as well to the DA and Defense.  The result, based upon 2016 data, is an approximate 73%  release-on-recognizance rate of arraigned persons whose cases are continued beyond arraignment.

Recently the City has funded a supervised release program in all boroughs giving the court an alternative non-monetary release option for defendants who were likely to receive a money-bail release condition. 

Additionally, CJA provides a full range of pretrial options to better assure that defendants who are released receive outreach from us to return to court.  Notification of upcoming court appearances - both several days before and on the morning of the court date - using interactive computerized calls, text messages, and letters give appropriate court location information and non-compliance warning.  Our Failure-to-Appear Units identify persons who did not appear in court and the staff reaches out to arrested persons for up to 29 days, counseling them to return voluntarily.  The Units have been successful in getting over 40% to return with additional warrant charges dismissed.

The agency is cognizant of those who leave court with low cash bail and who are slated for transport to Rikers Island and other borough facilities. With information gleaned from the defendant, our Bail-Expediting (BEX) Units contact family and friends to alert them about the arrest and the bail amount and to see if they can come to court to post bail before the defendant is transported to a correctional facility. CJA has been very successful in working with DOC and OCA in placing “holds” keeping the defendant at the court so the surety can come to bail the defendant from the court.

Most recently, CJA has been working with the charitable bail funds in Brooklyn and the Bronx in helping them to identify defendants with no available sureties, and placing holds on defendants who have been identified as eligible or likely candidates for their program. These bail funds are being expanded to other boroughs as well.

The core principle in all the initiatives that I just mentioned is the exposure of the arrested person to people who will work with him or her during the pretrial period to encourage court appearance and stress to them the importance of not getting rearrested.

Encouraging a defendant to truthfully participate in the pretrial interview, reaching out for court-date reminder, helping him or her to contact family or friends for release, supervising him more intensely to ensure he returns to court and avoid rearrest and giving him options to address certain behaviors such as drug treatment, anger management or employment/school. Or assisting bail funds who work with the defendant while he avoids jail at no cost to him, provides services that are personal in nature.  Even cases processed through a charitable bail-fund are not positively influenced as much by the cash amount, as by the personal interaction – the person-to-person contact that is built in to each initiative.

Money as a Stakeholder

The bill before us today is different. It rests solely on assessing an amount of money to be levied. While recent initiatives in NYC focus on the infusion of making the surety more personal in the process, the language of the bill focuses on using money as that which influences the release decision.  When we put into law or statute a mechanism that focuses on using money bail—no matter what the amount—the court relinquishes a certain discretion that is solely the courts, and only the court’s, prerogative. If you think about it, only the court can simultaneously maximize the three-pronged consideration necessary for pretrial release – a) weighing the liberty interest involved in the presumption of innocence and the presumption of release (as stated in Salerno: “Liberty is the norm, and detention prior to trial, or without trial, is the carefully limited exception;”) b) making choices that assure court appearance; and c) guarding the public safety in a way that is consistent with the law. Without this personal dynamic, how can an amount of money better assure safety?  Can money guarantee appearance better than non-financial or non-secure personal release bonds? Does money better ensure liberty? We already know that is not accurate. 

Regarding the proposed bill, how do we arrive at an established amount that a defendant can afford?  What do we consider: Salary?  Bank accounts?  Assets and property? Cost of defending oneself? Number of dependents? Outstanding debt?

And whose money are we talking about – the defendant’s or a personal surety? The work necessary to ascertain this information is formidable. And once an amount is determined, and the information goes to the defense attorney to talk about a money-bail alternative with his client, then money is on the same playing field as the other forms of release.  What was an individually-informed decision by the Judge to grant ROR, Supervised Release or unsecured personal bond will become largely a mechanical one determined by the nature of the charge, and an amount that a person can afford.

What is the intention of this law?

As I can see, the law is meant to reduce the number of defendants brought to Rikers Island and other Correctional facilities by providing the attorney with defendant financial information obtained by the pretrial services agency, which could be presented to the judge allowing him or her to have more factual knowledge when setting a monetary bail.  It is presumed that the judge will use the information to set a bail so that the defendant can bail him- or herself out. It also presumes that the court culture will change if the judge should have this information.  The DA will also have the opportunity to speak against it, and to make a bail recommendation.  A research report by CJA entitled: Factors Influencing Release and Bail Decisions in New York City, by Mary Phillips, has shown that the most important influence in the court’s release decision is the DA’s bail request.)

Without cultural change, will the court and other players buy into the bail scheme that this law mandates?  Just by making it a law, we think not.

What to do right now to alleviate the number of defendants going into DOC from Arraignment?

The estimated current cost of implementing this proposal would be approximately $2,300,000 including personnel and fringe, shift differential, overtime and OTPS.  The number of defendants held on bail in 2016 was about 41,586.  However, only 40% of them were employed, and their median earnings was $400 per week. Most of these defendants are unlikely to be able to afford any amount of bail.  If the Council is being asked to allocate so much money to facilitate the release of small numbers of defendants on bail, it would make more sense to fund proposals that would give you more “bang for the buck.”  The following suggestions may be helpful.

  1. The Mayor’s Office of Criminal Justice along with CJA will be working on a new ROR Risk Assessment that will be updated and hopefully will expand the number of defendants recommended for ROR.  This assessment can also be used to identify defendants who can be safely released under supervised release with appropriate release responses.  We would certainly recommend funding the expansion of supervised release so that such expansion with graduated responses citywide can service more defendants who would ordinarily be given bail.
  2. In the short term, working with charitable bail funds to expand their use
  3. Providing money for judges training on the arraignment process and extoling the purpose, law, and liberty interests of the release decision.
  4. Working with the Unified Court System in New York City to Stress the other forms of bail allowed by law but usually ignored.
  5.  Provide funding for the pretrial services agency to review the status of detained defendants on an ongoing basis to determine if there are any changes in eligibility for release or other circumstances that might enable the conditional release of the defendants and provide the court with needed information to facilitate the release under appropriate conditions.

The goal should be to create multiple, non-cash options to help judges realize the actual release of bailable defendants by reducing the use of money. The goal should be elimination of money bail and each small decision that is made regarding the judges release decision should keep that in mind as we move to achieve the ultimate goal.  The philosophical and ethical principle of creating a “personal” approach in fashioning each defendant’s release—ROR, supervised release, unsecured personal bonds, working with charitable organizations—have their roots in the original concept of bail.  Without the use of money, more defendants become eligible and are able to participate. The court, the people and the defendant are the stakeholders in the release decision process.  Money should never be a stakeholder at the table.  If the focus is shifted to any version of the current money-bail system, it will shift the decision-making focus and hinder the “personal” release decisions that are necessary for the simultaneous consideration of liberty, assurance of court appearance, and public safety.

In conclusion, I want to thank the Council for its concern about this very critical aspect of pretrial release, and for the opportunity you have afforded me and others to offer our comments and suggestions.

 


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