Fixing New York's Broken Bail System

City University of New York Law Review, Dec 2012

By Justine Olderman, Published on 12/31/12

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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 - 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)


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Justine Olderman. Fixing New York's Broken Bail System, City University of New York Law Review, 2012, Volume 16, Issue 1,