We reformed bail for a reason — now let's just give it a chance

(re: “Sometimes you just have to be profane to be profound — not,” March 19)

The recent Point of View piece disparaging the brand new, path-breaking bail reform resolution fails to take into account the enduring damage created by prior practices. While there will, unfortunately, always occur tragic abuses committed by those benefitting from the new release program, so long as humans have frailties, those occasional abuses will continue to occur, as they previously did under the prior strictures.

The absolute antidote would be never to release an arrestee until final disposition of a case, and even then recidivism would be a given.

What the critics ignore is the sweeping damage arbitrarily imposed bail causes impecunious men and women. Consider the following scenario: A complaint is made either by or to a police officer. That complaint is then relayed to an assistant district attorney, who drafts a complaint almost invariably based solely on the perspective of one person reporting the incident.

That complaint then goes to the arraignment part with a hopefully accurate account of what is now a second- or third-stage hearsay. Meanwhile, the accused is in a crowded, noisy, smelly holding pen — usually for many hours — and often over a sleepless night.

Next, because the overwhelming number of these accused are represented by public defenders, the accused is introduced to a hitherto unknown lawyer, who speaks to the brand-new client through metal bars, or other barrier. To be sure, these defense attorneys in the metropolitan area are well trained and do their best to explain the limits of their function while simultaneously offering whatever assurances they are able to provide.

Simultaneously, they attempt to ascertain the defendant’s explanation. Sometimes there are significant language barriers, oftentimes racial differences, and almost always little ability for the client to understand fully what is about to happen. With equal frequency, counsel has no opportunity to conduct her or his own immediate investigation.

Then to the courtroom. No district attorney will publicly criticize an assistant in his or her office for seeking too much bail. Bad press comes only from the harm committed by someone released on what is headlined as an irresponsibly low or no bail. Similarly, and unfortunately, all too often, the judge setting bail can take comfort in going along with the prosecutor’s bail request, or an unnecessarily high portion of that request.

Completely lost in that process is the ability of the prosecution to prove its case. In response, an often all-too-busy defense attorney, with information limited to the brief interview she or he has been able to obtain in the holding pen, is left with a judicial “compromise reduction,” still mandating immediate incarceration.

The result of this instant jailing often leads to a loss of employment, a family left without its wage earner, and children with the unexplained absence of their father or mother. As the days stretch into weeks, and even to months without being able to raise the necessary funds, the defendants opt to plead to “time served” for crimes which cannot be proved beyond a reasonable doubt.

And with that criminal record, opportunities for housing, employment and other vital necessities are severely damaged.

So when the Point of View writers note that “all hell broke loose” after Jan. 1, they built their complaint on serious, but very few setbacks. In so doing, they totally ignore the proven abuse of a system of justice that places access to financial resources on its scales, thereby wantonly harming the lives of tens of thousands of men and women held solely because the prosecutor asked for, and the judge did set, an unreachable bail.

Finally, this systemic abuse of bail setting costs doubly. According to a thorough analysis by New York City controller Scott Stringer, we taxpayers now spend some $337,000 to detain a presumably innocent defendant in jail for a year. An even greater stain is caused in the disabling of each jailed defendant to prepare effectively for his or her defense.

If released on bail, an accused is able to take defense counsel to the site of the alleged crime, introduce prospective witnesses, quickly gauge critical sightlines, take meaningful photographs, and maybe even gather physical evidence. An incarcerated client is disabled from providing that assistance.

It is why those who are not released on bail suffer so much a higher conviction rate.

The author is a former New York County prosecutor, special district attorney in Bronx County, and more recently, a member of the defense team that obtained the reversal and dismissal of all charges against the so-called “Central Park Five.”

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