New York - As the Occupy Wall Street movement has introduced a new young generation of mostly white, mostly middle-class activists to civil disobedience, arrest, jail, and the inner workings of the criminal-justice system, they're learning firsthand what New York's poor, black, and immigrant communities have known for years: The criminal-justice system is rotten.
Stop-and-frisk policing might be the highly visible doorway into the system, filling jail cells and court dockets with poor black and brown New Yorkers on mostly minor charges. But it's in court—and specifically at arraignment—where the full discriminatory weight of the justice apparatus is brought to bear.
It is a central tenet of American justice that as these arrests enter the court system, people are innocent until they are proved guilty. But the open secret of New York's criminal courts is that there simply aren't enough judges, prosecutors, and hours in the day to give each of these defendants a fair chance to prove their innocence, to challenge the evidence against them, and to mount a defense.
New York's criminal courts are underfunded and overwhelmed with cases—more and more of them misdemeanors and minor offenses as the NYPD pursues its so-called broken-window strategy.
If even a fraction of those presumed innocent fought their cases in court, the system would grind to a halt. To keep things moving, judges and prosecutors need defendants to plead guilty to something as early in the process as possible. And the single most powerful tool to extract a guilty plea is the threat of bail.
In the state of New York, bail can only legitimately be set for one reason: to ensure that a defendant will return to court for his or her next hearing. But everyone who works in criminal justice in New York City knows that's not what's going on at all.
For no particular reason other than institutional habit and a fondness for round numbers, bail in New York is generally set in increments of $250 and, more commonly, $500. In 40 percent of cases where bail was set in 2010, it was $1,000 or less.
Some people wouldn't have much trouble coming up with $1,000. If they don't have it themselves, they have friends, a family, and a community that could scrape it together. But those aren't the people who make up the overwhelming majority of criminal defendants.
In 2010, only 17 percent of those held on $1,000 or less made bail at arraignment. The rest stayed locked up. Some posted bail later, but half of them remained in a jail cell until their cases were disposed of. The figure is almost as bad for people held on $500 or less: Forty-four percent of them—all presumed innocent, remember—stayed in jail until their case was decided, simply because they couldn't make bail.
If you're not in this country legally, there are added stakes: Pleading out at arraignment is your last best hope of avoiding deportation. Once at Rikers, your immigration status is almost certain to be screened and passed on to Immigration and Customs agents.
Faced with such high stakes, it's no wonder that so many defendants cave when prosecutors mention bail.
"It happens all the time,"we see clients at arraignment not wanting to plea, saying they want to fight their case. Then they hear the bail that the prosecutor is going to ask for, and they'll turn to their defense lawyer and say, 'I'll take the plea'" Robin Steinberg, executive director of the Bronx Defenders said.
This use of bail has been an integral part of the justice system for decades. But recently, there has been a renewed push to return bail to its statutory purpose and make sure that no one stays behind bars just for being poor. Some, such as the Bronx Defenders, are pursuing reform through education and impact litigation. Others, like Occupy Wall Street affiliates, are contemplating direct actions that will test the courts' commitment to justice.