Courtwatching: How bail gets set

Courtwatching: How bail gets set

Gov. Andrew Cuomo has proposed to end cash bail for people charged with misdemeanors and non-violent felonies. The Democrat-controlled state Assembly’s budget resolution includes the measure; the Republican-controlled Senate’s does not. As of Sunday night, bail reform was “likely” to be excluded from this year’s $170 billion deal, due April 1, according to Politico.

Over the past two weeks in Troy city court, The Alt has watched several mornings’ worth of arraignments—criminal defendants’ first appearances in court, when charges are read aloud, pleas are entered, and bail (if deemed appropriate) is set. Here are a few appearances we saw:

¶ A Troy man was charged with four burglary-related counts. He had no prior felonies, one misdemeanor. Public assistance constituted his only source of income. The assistant district attorney suggested $5,000 bail. The defendant’s assigned counsel from the public defender’s office suggested a form of supervised release. The judge set bail at $2,500.

¶ An unemployed Troy man was accused of second-degree assault, a felony. He had one prior, decade-plus-old felony. The ADA requested that the defendant be remanded without bail. The defense asked for supervised release. The judge accommodated the ADA’s request (though days later, at a second hearing, he set bail at $7,500).

¶ A Troy woman with no criminal history was accused of first-degree assault, a felony. The ADA asked that she be held without bail. Defense counsel asked for supervised release or bail of about $7,500. The judge set bail at $10,000.

¶ A Saratoga County man was arraigned on third-degree criminal possession of a controlled substance, a felony. The judge had issued a bench warrant for his arrest, after he failed to appear on another matter. The defendant had a past misdemeanor conviction and several pending cases in other jurisdictions. The ADA sought $5,000 bail. Defense counsel asked that their client be released without any conditions or that “very modest bail”—say, $500—be set. The judge set bail at $7,500.

To be clear, these are merely examples from our brief time in court and not necessarily representative of release-status deliberations in Troy or elsewhere. More than 2,600 criminal cases were filed last year in Troy city court, a few hundred more than the previous year, according to the state court system’s annual report. (We asked the city court clerk’s office if they could provide us some sort of release-status compilation over a period of time as short as a week, but were told that wasn’t possible.)

State law says that, in setting bail, “the court must consider the kind and degree of control or restriction that is necessary to secure [a defendant’s] court attendance when required.” To the extent information is available, family ties, finances, past convictions, and “the weight of the evidence against” defendants, among other factors, are supposed to be considered.

We saw these factors considered in Troy, even though determinations were made rather briskly. Attorneys with the public defender’s office, having just been assigned defendants after they were brought before the judge in handcuffs, and perhaps having skimmed the defendants’ rap sheets and exchanged some whispered words, made reasonably detailed arguments for their clients’ release. It seemed hard to imagine that this routinized process could soon be eliminated, or at least significantly altered.

“The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning,” The New York Times Magazine reported in 2015. “Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead.”

Along these lines, Schenectady County Public Defender Stephen Signore and other defense attorneys told us that, if bail for many crimes was abolished, defendants might become more inclined to litigate cases—and that, in turn, district attorneys might extend them more favorable plea deals.

If state lawmakers fail to reform monetary bail practices, it’s possible that, at least eventually, courts will intervene. Earlier this year, in a reportedly unprecedented ruling, a state Supreme Court judge found that, in setting $5,000 bail for an indigent man suspected of stealing a vacuum without considering his ability to pay, a judge in Dutchess County violated the U.S. Constitution’s due process and equal protection clauses.

In 2015, the state agreed, as part of a major lawsuit settlement, to ensure that all poor defendants in the five counties named in the suit are provided counsel at arraignment, among other reforms. The state Office of Indigent Legal Services, tasked with ensuring the state’s compliance with the deal, appears to have secured bicameral legislative support this year for a significant increase in funding (about $50 million) to begin extending the settlement terms to the rest of the state.

A federally funded, six-county study being conducted through the University at Albany’s School of Criminal Justice has preliminarily found, though not across the board, an increased rate of release and lower bails set when defense counsel is present for arraignments, ILS director Bill Leahy told The Alt. It is already well established that defendants who secure pretrial release achieve more favorable outcomes, he said.

More than 30 counties now offer counsel at arraignment—though only a small number of those provide counsel at every single arraignment, every day, Leahy said. All counties must work with ILS to become compliant with the lawsuit settlement terms by April 1, 2023.

Courtwatching is a quasi-weekly series in which, as the name implies, we write about Capital Region courts of law. Reach out ( with tips or topic suggestions.

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