Overall trends and questions to consider:

  • By law, the purpose of bail is to ensure an individual returns to court. Judges are not legally permitted to consider dangerousness when setting bail. Yet, prosecutors routinely cite the seriousness of crimes when requesting bail. This is not an isolated practice; it is the accepted norm, which goes unchallenged by both the judge and defense.

  • For watchers, it seems the most significant predictor of bail amount is the seriousness of the crime. The amount bail is set at increases dramatically when the crime is a violent felony, especially in the case of sex crimes. The accused person’s ability to pay bail, the risk of flight, none of these factors seem to play a comparable role.

    • A young black man (age 18-24) accused of 2nd degree murder. Prosecution asks for $150,000 bail, and judge grants $100,000. Prosecutors focused on the seriousness of the charges and prior arrests but didn't specify why defendant was a flight risk.

  • There is a pattern of prosecutors requesting a bail amount and the judge ordering half of the amount requested. Do prosecutors take this into account when setting bail, deliberately requesting an amount substantially higher than what they intend, knowing the judge will ask for 50%?

  • Many "broken windows" charges are still being prosecuted at arraignment: possession of graffiti implements, open containers, marijuana possession. On their own these charges tend to be resolved as Adjournment in Contemplation of Dismissal (ACDs). After a certain period of time, the case will be dismissed if the accused stays out of trouble, but remember that in NY there is a limit of one marijuana ACD per lifetime. These charges are commonly added on in conjunction with more ‘serious’ offenses, almost like an afterthought for the prosecutors, but certainly problematic for the accused. For marijuana charges in particular, the prosecutors barely discuss the charges or cite them in arguments. Why bother filing these charges at all?

  • An accused person was allowed to return to the homeless shelter where he was living despite orders of protection against him from other residents. While watchers were relieved to see the judge rule in his favor, what will happen to this man if subjects of the protective orders call the police? What happens if a different judge is at the next arraignment?

  • A man accused of stealing 5 tubes of toothpaste from a Duane Reade was referred to the newSTART program. If newSTART is an alternative to short jail terms, does that imply that stealing small quantities of toothpaste or soap is worth sending people to jail for?

Some specific cases from last week:

  • Prosecutors requested $75,000 bail in a felony case after consultation with SVU. The defense argued that this was punitive, and reminded the court that the purpose of bail was to ensure the accused shows up to court. Judge Freier still ended up setting bail, but at a lower amount of $3,000 bond / $2,000 cash.

  • A young man (roughly 20 y/o) was accused of felony burglary and 3rd degree trespass. He had no prior record and is the primary caregiver for his mother (who was struggling with drug use). The prosecutor requested $15,000 bail. Although not stated on the record, Judge Chu appeared to take his age and caregiver status into account, releasing him on his own recognizance.

  • A middle aged black man was brought in on outstanding warrant. He had been attending a court-mandated year-long program but dropped out near it's completion to care for his mother with Alzheimers after she became seriously ill. His mother died shortly thereafter. Judge rules he must redo program in it's entirety.

Reflection from a Watcher

I spend more time than the average person in court rooms. I work at a law firm that represents parents with ACS cases in Family Court. We are the public defenders in family court. Through my work, I’ve seen how disempowering the family court process is for those who are involved. On a daily basis, parents with ACS cases beg me to think of them as a good parent. There is little more humiliating for a parent than having their parenting skills called into question, than being told that they have neglected their child. An essential part of my job is giving a voice to parents who have been charged with neglect and abuse.

Many of my clients have concurrent criminal cases and, while my organization does have a criminal defense team, I wanted to learn more about this process and what my clients are facing in criminal court. This is why I signed up to be a court watcher. My first court watching shift was three weeks ago in Brooklyn. During my first shift, I could not hear a single charge read out by the bailiff. For the majority of the morning I was confused and lost during the arraignments. During my second shift the following week, I was struck by something that was more significant in my opinion. The prosecutor was repeatedly putting incorrect information on the record. First, in her bail application, she stated that a accused had 11 felonies. The accused person and his attorney looked confused. A few minutes later, the prosecutor corrected herself: she meant one felony. During another case, the prosecutor stated on the record that the accused had multiple open cases. Once again, the accused and his attorney looked confused. The defense attorney stated that he did not know which cases the prosecutor was referring to and nor did his client. The prosecutor spent some time looking through her files - she revealed that she had accidentally referred to the accused’s mother and she did not know how she had gotten that information. In neither of these cases did the prosecutor issue an apology to the accused.

These instances stuck out to me so much because I spend my days learning the stories of my clients and I know how much it means to them to get to tell their story to a nonjudgmental and empathetic ear. I can only imagine how, having the facts of your story misstated, on such an important stage, can make someone feel. If I were one of the defendants I spoke about I would feel so disempowered, I would feel like nobody cared enough to get the facts of my story correct. I believe that the false statements made by the prosecutor, although retracted eventually, can leave a lasting first impression and color the life of the case. In these moments, I felt the true unjustness of the criminal “justice” system.

I felt proud to be there in my yellow shirt, holding the prosecutor accountable. I look forward to doing more court watching so I can be a small, yet important part, of telling the true and important stories of individuals who are involved in the criminal justice system.