Thousands Accused of Minor Crimes Spend Time in Pretrial Detention
December 3, 2010
For people scrambling to pay the rent each month, finding $1,000 for bail can be as impossible as finding $1,000,000. Bail punishes the poor because they cannot afford to buy their pretrial freedom.
Jamie Fellner, senior counsel for the US program at Human Rights Watch

(New York) - Thousands of people accused of minor crimes are held in pretrial detention in New York City each year solely because they cannot afford to pay even small amounts of bail, Human Rights Watch said in a report released today. In New York City, defendants who cannot post bail are sent to jail for pretrial detention.

Drawing on previously unpublished data and scores of interviews with judges, defendants, prosecutors, and defense counsel, the 70-page report, "The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City," reveals the extent of the problem. Among defendants arrested in 2008 on nonfelony charges who had bail set at $1,000 or less, 87 percent were incarcerated because they were unable to post the bail amount at their arraignment. On average, they spent almost 16 days in pretrial detention for low-level offenses. Most were accused of nonviolent minor crimes such as shoplifting, turnstile jumping, smoking marijuana in public, drug possession, trespassing, and prostitution.

"For people scrambling to pay the rent each month, finding $1,000 for bail can be as impossible as finding $1,000,000," said Jamie Fellner, senior counsel with the US Program at Human Rights Watch and author of the report. "Bail punishes the poor because they cannot afford to buy their pretrial freedom."

Under New York law, bail should be set at an amount calculated to reasonably ensure that defendants return to court, taking into account their financial resources. But whether deliberately, inadvertently, or carelessly, New York City judges usually set bail at amounts that are too high for low income or indigent defendants. Almost one quarter - 23 percent - of jail admissions last year were pretrial detainees charged with misdemeanors who had not made bail. The expense to New York City is considerable. For example, Human Rights Watch calculated that the city could have saved at least $42 million if it had not incarcerated the 16,649 nonfelony defendants arrested in 2008 who were unable to make bail of $1,000 or less.

Pretrial supervision of defendants released in their communities is an effective alternative to incarceration to ensure that released defendants return to court. Pretrial supervision not only honors the presumption of innocence, but it is far less expensive than housing, feeding, guarding, and providing medical care to inmates confined around the clock in jail. However, New York City does not have a program of pretrial supervision for nonfelony defendants. It has only recently begun a pilot program for certain felony defendants.

Jail can be dehumanizing, unpleasant, and even violent, Human Rights Watch said. It exacts a high toll on those who are incarcerated as well as on their families, who suffer from reduced income and absent parents or caregivers. Many defendants plead guilty simply to avoid or end pretrial detention. Indeed, guilty pleas account for 99.6 percent of the convictions of New York City misdemeanor defendants.

Judges may intentionally set bail at a level beyond a defendant's means when they believe the defendant will not return to court if released. Human Rights Watch found, however, that failure to appear in court is not a widespread problem in New York City. Court-processing data indicates that 84 percent of released defendants show up for all their court proceedings; and most of those who miss a scheduled court appearance come back to court within 30 days.

New York City judges almost always set bail in the form of cash or secured bonds. Human Rights Watch found they disregard other bail options that do not condition pretrial liberty on financial resources; for example, an unsecured bond, for which a defendant promises to pay a specified amount for failure to return to court.

To address the inequity of pretrial detention for nonfelony defendants who cannot afford bail, Human Rights Watch makes two key recommendations:

  • New York City judges should more carefully tailor their bail decisions to defendants' financial resources, including by setting bail in the form of unsecured appearance bonds, so that more defendants are able to make bail.
  • New York City should develop pretrial supervised release programs for nonfelony defendants who are not released on their own recognizance and who do not have the financial resources to post bail.

"Pretrial detention of low-level defendants is a routine injustice in New York City," Fellner said. "Sending people to jail for want of a few hundred dollars has nothing to do with fairness, crime control, common sense, or fiscal prudence."