New York City Online Bail System Creates "Cashless" Bail Procedure
New York City has rolled out a new online system for posting bail for people being held in New York City jails on $2500 bail or less, creating a far simpler, faster, and less frustrating means for friends and family members to get loved ones released from custody while their cases are pending. The new online bail payment system is another in a series of measures being taken by New York City to address a growing sense that the bail system as it was unfairly detained poor people and led to an unjust disparity in resolutions of similar cases between those who could afford to pay modest bail, and those who could not. To take advantage of the new system, people need to start at the NYC Inmate Lookup Page.
Background about Bail System as it Has Been
Under New York law as it currently exists, the question of bail is supposed to be about answering a very simple initial question, and then possibly one follow up question. The first question that the judge must answer at an accused's first appearance (called arraignment) is "Can I trust this person to return to Court when I tell him/her to return to Court?". If the honest answer to that question is "yes" the Judge is supposed to be done, and the person is required to be released without any bail at all. There are no further questions to be answered or considered if the answer is that the person can be trusted to return to court. This is true because we in America believe in the presumption of innocence, and if a person is presumed to be innocent, then we do not want to imprison him before he is found to be guilty.
But, if bail is not a question of extracting punishment before a determination of guilt, then bail is only a question of serious doubts that the accused will be willing to return to court on his or her own without some "incentive". So if a Judge has legitimate doubts about the person's willingness to return to Court when required, the Judge must answer a follow up question. That follow up question is, "What is the smallest amount money I can set as bail that will provide enough incentive for the accused to return to Court when required?"
And here is where things get tricky. It might be tempting to think, then, that a Judge is required to set an amount of bail that the accused could actually make, that would represent an amount to that person that would make sure he wouldn't want to lose that amount of money. But that is not the way the law has been interpreted. Judges are NOT required to set an amount of money that an accused can make. Being too poor to make the bail set is not a legally powerful argument to make when challenging the bail decision of the Judge at arraignment.
Poor people who have bail set are placed in a terrible position, if the bail, as "modest" and "reasonable" as it may be, is nevertheless still too much for them to make.
What Difference Does it Make?
Realize that, at this point anyway, the focus of this new online bail system, is to assist people who have very modest amounts of bail set, on less serious criminal matters, who are simply too poor to be able to easily and quickly post the bail.
Understand that failure to post the bail means that the person will be detained in jail (most of the time at Rikers Island or the "Boat" (Vernon Baines Correctional Facility in the Bronx). The person will be detained in this situation for as long as it takes for the case to be resolved.
As a general matter, for people accused of misdemeanor offenses, the minimum amount of time before the next day in court after arraignment will be five days (sometimes less because of weekends and holidays). This five day adjournment date, known as the 170.70 day (after CPL Section 170.70) is the date by which the Government must breathe life into the case by handing up certain legal documents, or the bail will be required to be reduced to zero. This 170.70 date is often the only hope for release for people held on misdemeanor bail they cannot make.
The system leverages custody against poor people by encouraging people being held to settle cases in ways that people who are able to make bail (wealthier people) are not. If a wealthy person who can afford to make bail is made an offer at arraignments that concludes the case, but not in an absolutely ideal way, the wealthy person can walk away from the negotiations for the moment and simply continue the case into the future, knowing that he or she will be out, able to go home, to go to work, and to live a normal life.
On the other hand, if a poor person who can't afford bail is made an offer at arraignments that concludes the case, but not in an absolutely ideal way, the fear that failure to accept the offer will likely mean spending time in jail because bail will not be able to be made has a way of influencing people to accept less than ideal solutions to their cases.
The Court’s response to this of course would be to recoil in pretend horror at the notion that anyone is resolving cases for reasons that smack of such philosophically uncomfortable practical influences. The Court system likes to pretend that risk management and practical considerations have nothing to do with decisions to settle criminal cases. In fact, if an accused dares even to suggest on the record that the motivation to accept a settlement is based on practical or risk management considerations, there is a substantial possibility that the Court will refuse to settle the case at all.
For example, a "time served" settlement may well allow the person to walk out the door right there and then from arraignment - but perhaps it involves pleading guilty to a crime. Maybe further negotiations could have yielded a better settlement option - say to a non criminal offense. But if the person is either terrified of spending at least five days in jail until the next appearance, or will be fired from his job by disappearing for five days, maybe the person chooses to do whatever it takes to get out there and then, regardless of the wisdom of the settlement.
In the longer term, people who are in custody on bail tend to get worse offers for settlement than people who are either released without bail or out on bail they have made. The Government uses the obvious leverage of continued custody in settlement negotiations. There is an old saying in the criminal justice system that describes the results of this leverage in the hands of the Government.
Those who are out, tend to stay out, and those who are in, tend to stay in. This rule of thumb doesn't care whether you are out because you were released up front, or whether you had bail set that you were able to make. The only question is whether you are out or in. This is one of the reasons why I always recommend that people make bail for loved ones when they can. Sometimes, parents, for example, will think it might be a good idea to "teach someone a lesson" by letting them sit in jail on bail. The problem is that even if there were a valuable lesson to be learned in jail (which I am not so sure about), the fact that the person is in jail will make a favorable offer harder to come by.
Now of course, like any other rule of thumb, it is not meant to be taken as some sort of rigid, rock solid mathematical certainty. This is a very rough approximation of a whole group of situations that are all individual, very factually based situations.
So How Will This New Online Bail System Affect the Administration of Justice In NYC?
Knowing the leverage that the Government gains from people incarcerated on bail, then, it is easy to see that any reform that makes it less likely that bail will be set, or anything that makes it more likely that people who have bail set will be able to make it and make it quickly, will take away some of the Government's leverage in misdemeanor cases in Criminal Court.
Every person who makes bail will be one more person who won't necessarily have to choose between a less than ideal settlement of his or her case and losing a job or losing an apartment or missing so much school that he or she is kicked out of school.
How Will the Online System Help
One of the biggest problems with the old bail system in NYC was the incredible bureaucratic nightmare associated with posting bail. Unless someone had the full amount of the cash bail in arraignments at virtually the moment that bail was set, then getting some out on bail meant traveling to Rikers Island or the VCBC facility in the Bronx and setting in motion a process that could last close to 24 hours in some cases before the person is actually released.
The new program for making bail online will eliminate that logistical and emotional nightmare from the process, making it possible even for friends or family members to post the bail from out of state. People wishing to post bail can even combine forces and use multiple credit cards, or one person can use multiple credit cards.
In order to address the needs of people who don't have easy access to computers of their own, the City will be installing dedicated kiosks in Court that are at least more accessible than either of the City jail facilities.
By Don Murray, Esq.
Don Murray is a founding partner at Shalley and Murray, a New York City criminal defense law firm. He has been a New York City criminal lawyer for more than 27 years, handling a wide variety of criminal matters from the least to the most serious. Call 718-268-2171 to consult with Mr. Murray about a criminal matter in New York City.