Fixing New York's Broken Bail System
Fixing New York's Broken Bail System
Justine Olderman 0
hT e Bronx Defenders 0
0 The C UNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA
Follow this and additional works at: https://academicworks.cuny.edu/clr Part of the Law Commons Recommended Citation Justine Olderman, Fixing New York's Broken Bail System, 16 CUNY L. Rev. 9 (2012). Available at: 10.31641/clr160102
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FIXING NEW YORK’S BROKEN BAIL SYSTEM1
Justine Olderman †
THE PROBLEM OF BAIL
New York City jails are currently filled with people who are
serving time but haven’t been convicted of anything at all. They are
there for one reason. They cannot afford the price of their bail.
Bail is the single most important decision made in a criminal case.
Bail is what determines whether someone will plead guilty or fight
a case and whether he or she will receive a jail sentence or be given
an alternative to incarceration. Spend a week or two representing
people who are held “in”2 on bail and it will be obvious that the
effect of bail on the outcome of a person’s case is only part of the
problem. People sit in jail for days, weeks, months, and sometimes
years waiting for their trial date.3 The effect on their lives and the
lives of their families is nothing short of devastating.
1 The following remarks were prepared in conjunction with a panel discussion
hosted by the City University of New York Law Review on February 23, 2012 titled “Bail:
Incarcerated Until Proven Guilty.”
† Justine Olderman graduated magna cum laude and Order of the Coif from New
York University School of Law. While at NYU, Justine was the Managing Editor of the
Review of Law and Social Change and was awarded the George P. Faulk Memorial
Award for Distinguished Scholarship; Justine spent two years clerking for Judge
Robert J. Ward in the Southern District of New York before joining The Bronx Defenders
in 2000. After working for a number of years as a staff attorney, Justine became a
training team supervisor for new lawyers, then a team leader for experienced
practitioners, and is currently the Managing Attorney of the entire Criminal Defense
Practice. As Managing Attorney, Justine helped lead a city-wide bail initiative bringing
together public defenders across the city to address the problem of bail in New York.
In addition to participating as a panelist at CUNY School of Law’s forum on bail,
“Bail: Incarcerated Until Proven Guilty,” she also spoke at John Jay’s Guggenheim
Symposium panel “Jailed Without Conviction: Rethinking Pretrial Detention During
the 50th Anniversary of Gideon v. Wainright.” She has taught Bail Advocacy at the
Judicial Institute, the New York State Defender’s Association’s annual conference, and
public defender offices around the city. In addition to her work at The Bronx
Defenders, Justine was an adjunct professor of Legal Writing at Fordham Law School and of
Persuasion and Advocacy at Seton Hall Law School. She has also taught CLE courses
on Persuading through Storytelling.
2 People held “in” on bail are detained in jail as a result of not paying the amount
of bail set for them by a judge. Those who are “out” have either posted bail, or have
been released on their own recognizance.
3 See William Glaberson, Justice Denied: Inside the Bronx’s Dysfunctional Court System:
Faltering Courts, Mired in Delays, N.Y. TIMES, Apr. 13, 2013, http://www.nytimes.com/
2013/04/14/nyregion/justice-denied-bronx-court-system-mired-in-delays.html
(reporting that the Bronx “was responsible for more than half of the cases in New York
City’s criminal courts that were over two years old, and for two-thirds of the
defendants waiting for their trials in jail for more than five years”).
For too long, the problem of bail has gone ignored—not just
by people working outside of the criminal justice system, but also
by those of us who work within it. Judges, prosecutors, and even
defense attorneys have been complacent about the routine
incarceration of people too poor to post bail. But thanks to the Human
Rights Watch report on bail and panels like this, all that is
changing.4
The vast majority of the people coming through New York
City’s criminal justice system are poor people of color from
marginalized and under-resourced communities.5 And the vast
majority of them cannot afford the price of their bail even when the
bail may seem relatively low. For example, according to one study,
88.7% of people who had bail set at $1,000 could not raise the
money to pay that bail at their first court appearance and so,
instead of being released, were sent to Riker’s Island.6 In 2009, at
least half of the people sitting in New York City jails were there
simply because they could not afford the price of their freedom.7
People who cannot afford to post bail will remain in jail until
they plead guilty, the case goes to trial, or the case is dismissed. I
had a client a few years ago who was charged with attempted (...truncated)