A to and fro with Scott Greenfield at Simple Justice on the question of bail

Image credit: domainstick.com

Image credit: domainstick.com

Yesterday,  at Simple Justice, Scott wrote about an op-ed piece in the New York Times authored by a lay person (whose biography is lefty)  that advocated that bail should never be required. Apparently, the use of bail, particularly in the New York state courts, remains ubiquitous. Unlike the author of the op-ed piece, SHG unpacked the use of bail with his customary brilliant blend of cynicism and realism.

Anyway, I wrote a comment and the following to and fro resulted:

Me:  According the NYC Comptroller, it costs $96,232 per inmate per year at Rikers. While the federal system (Bail Reform Act of 1984) is hardly perfect, the preference for release and then supervision by pretrial service officers under strict conditions is a decent model. I can’t remember the last time I saw a federal case in our court where bail (money) was required.

Of course, we also engage in outright “preventive detention” which is an anathema to many. That said, there is a certain honesty required by having to state the reasons the judge is detaining someone, even if that explanation is contained in “fill in” the blank form.

By the way, I did a lot this type of work while serving as a Magistrate Judge for five years. On the other hand, I don’t know a damn thing about New York.

Scott:  The quantity of drugs in SDNY and EDNY tends to make the detention presumptive, and rarely can a defendant overcome the presumption. I really hate that.

On the other hand, I love PRBs with a couple of FRPs. That preserves the pool of resources available for counsel.

Me:  Re: drugs in SDNY and EDNY:

In terms of drug cases, measured on a per judge basis, for the period ending September of 2014, our per judge felony criminal caseload was 228. SDNY’s number was 64 and EDNY’s number was 81.

We ranked 7th in the nation and 2nd in the Circuit. From 2008 to 2012, drug convictions comprised the largest portion — 46 percent — of criminal convictions in federal court in Nebraska, according to a U.S. Sentencing Commission report. Of that, about 58 percent of Nebraska’s federal drug cases involved meth — more than 40 percentage points above the national average.

Out here, in a drug case, the trick is to see the pretrial services officer quickly to propose a release plan. That gives the officer time to investigate it, so the MJ can, armed with the release plan, say the presumption is overcome and he or she can do so with a straight face. The defendant may be detained initially, but reviews of detention are freely given.

Scott: I was previously unaware of the correlation of living in Nebraska and meth, but it makes perfect sense. [Zing]

Scott: [Referring to an earlier post of mine] But DRUGS and crack whores. Sorry, Judge Kopf, but I just couldn’t restrain myself. [Zing]

Me:  I have a special affection for “crack whores” but not in a PERV way.

There is both substance and gallows humor in the foregoing exchange. That is why I pass it along to you. On the other hand, it might just be babble.



2 responses

  1. A pretrial services department can certainly assist the court in making informed release decisions, but my guess is that the bail bonding industry in New York (and a handful of other states where judges are selected via partisan election rather than a merit based system) control the state court system more than we will ever know. When a state court judge fears his or her re-election over making an informed release decision, it is quite natural to error on the side of detention rather than release – thus one of many complicated factors involved in the question of bail.

  2. TGC,

    I feel badly for elected judges,most especially for those who run in highly partisan elections. Making a decision, when you know the correct one may result in getting you booted, must be hellish. Even so, I hope elected judges separate their own self interest from their decisions. It can be done, but it is hard.

    All the best.


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