By Rory Lancman
To: Loretta Lynch, attorney general of the United States; Preet Bahara, U.S. attorney for the Southern District
In light of the Department of Justice’s recent amicus brief in Walker v. City of Calhoun arguing for the unconstitutionality of bail systems that insufficiently consider both a defendant’s indigence and alternative methods of assuring appearance at trial, I am writing to request that DOJ investigate the bail system in New York City, where thousands of low-level indigent defendants spend time on Rikers Island for being unable to make bail of $1,000 or less.
Rikers Island is populated primarily by poor people being punished for their poverty. Or, as former New York Chief Judge Jonathan Lippman stated last year, “Far too many people are trapped in pretrial detention simply because they are poor.”
In 2015 my committee led a hearing on the state of bail in New York City, featuring testimony from stakeholders across the criminal justice system. The numbers adduced were shocking. According to data provided by the New York City Department of Corrections, approximately 53 percent of all inmates incarcerated on Rikers Island were detained because of an inability to post bail. Pretrial detention statistics for low-level defendants are particularly striking. The New York City Criminal Justice Agency reports that in 2014, 85 percent of non-felony defendants — more than 6,000 people — were unable to make bail of $500 or less at arraignment and 46 percent of these defendants never made bail prior to final disposition of their case.
Then there’s race. A Vera Institute of Justice study of Manhattan Criminal Court found black and Latino defendants more likely than white defendants to be detained at arraignment for having bail set that they could not meet, and a Human Rights Watch study found that black and Latino defendants comprise 89 percent of pretrial detainees held on bail of $1,000 or less.
These numbers reflect numerous institutional failures, including:
1) the near universal failure of participants in the arraignment process to ensure (a) consideration of a defendant’s “employment and financial resources” as required by New York law and (b) utilization of any of the seven allowed five alternative forms of bail other than cash and commercial bond;
2) the city’s failure to make paying bail less onerous for the poor, so that (a) defendants aren’t rushed to Rikers Island before a family member can appear and pay bail, and (b) payments for those on Rikers Island can be made online without family members trekking to a city jail for a process that takes hours.
These failures mirror many of the concerns outlined by DOJ’s brief in Walker. Specifically, New York City reflects “a bail system that incarcerates indigent individuals without meaningful consideration of their indigence and alternative methods of assuring their appearance at trial.”
As such, I respectfully request that DOJ conduct an investigation to determine whether bail and pretrial detention practices as applied to indigent defendants here in New York City violate the constitution, and if so to take such action as is necessary to effect remedial measures.
Rory I. Lancman
City Councilman
Fresh Meadows
