On July 28th, 2015, Human Rights Watch sent this letter to Chief Judge Jonathan Lippman of the State of New York urging him to encourage judges to use alternatives to cash and secured bonds when setting bail.
July 28, 2015
Chief Judge Jonathan Lippman
Chief Judge of the State of New York
New York State Court of Appeals
20 Eagle Street
Albany, NY 12207
Dear Chief Judge Lippman:
We very much appreciated meeting with you shortly after we issued our December 2010 report, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City. During that meeting we discussed the way the current bail system penalized defendants too poor to buy their pretrial freedom and we discussed various reform options.
Since that time, you have been a strong proponent of bail reform legislation. However, a significant, albeit not complete, solution to the problem of pretrial detention for defendants who cannot afford bail already lies in your hands. We are writing to urge you to encourage judges to use alternatives to cash and secured bonds when they set bail.
Under New York law, bail should be set only as high as necessary to reasonably assure the defendant’s return to court. Most poor defendants – especially the misdemeanor defendants who constitute the bulk of New York City’s criminal cases – would not face the risk of pretrial detention if judges tailored the amount and form of bail to the defendant’s resources.
Judges typically set the bail at too high an amount relative to the defendant’s financial resources. For example, in 2013 (the most recent year for which data is available from the New York City Criminal Justice Agency), 90 percent of nonfelony defendants faced pretrial detention because at arraignment they could not pay cash bail set at $1,000 or less.
Bail set at $1,000 would be affordable to more defendants if judges did not require it in the form of cash or secured bonds. Years ago New York legislators established alternative forms of bail, e.g. partially secured or unsecured appearance bonds, precisely to reduce the burden of cash bail on poor defendants. Yet judges almost never use the alternative forms.
We believe that they would start using them, however, if you impressed upon them the importance of doing so. You have many means at your disposal to educate judges about the different forms of bail and how to use them to ensure pretrial freedom does not depend on the size of the defendant’s wallet. You could communicate with judges directly. You could give interviews and speeches emphasizing the imperative that the judiciary make full use of the bail authority granted to them by law. Establishing metrics for performance is another powerful way to prompt change: you could ask administrative judges to track the number of cases in which bail is set in forms other than cash and secured bonds. You could also make sure that training in alternative forms of bail is provided by the Judicial Institute and by the Office of Court Administration for all new and current judges.
We would welcome the opportunity to meet with you to discuss the steps you might take to increase the use of alternative forms of bail in New York courts. We will contact your office in the near future to see when such a meeting might be scheduled.
Sincerely,
Jamie Fellner
Senior Advisor, US Program
Human Rights Watch
