Comptroller Calls for Removing Profit From City’s Bail Equation
Posted January 16, 2018 9:35 p.m. EST
NEW YORK — By the time a Bronx jury acquitted Belkis Batista of attempted murder in August, her family had paid more than $16,000 to a bail bond company to help her stay out of jail while fighting the charge, which stemmed from a fight with her brother. A few weeks after the verdict, the bondsman returned about $5,740 and kept the rest.
Batista, a school bus aide who was making $250 a week, and her family could hardly afford the difference, but it had been the only option. At her arraignment 16 months earlier, a judge had given Batista the same two options courts give most defendants facing jail: pay cash bail upfront, or hire a bondsman to post bail at a fraction of the upfront cost.
Judges’ reliance on commercial bail bonds, a routine practice in the United States that is uncommon or illegal in most other countries, is a significant reason that New York City spends $10 million each year to jail thousands of defendants who post bail within a few days and are released, according to Comptroller Scott M. Stringer, the city’s chief financial officer. Stringer is set to release a report calling for commercial bail to be eliminated in the city.
For the accused in New York City, who are mostly poor African-American and Hispanic people, the financial burden is acute: about $28 million in lost wages, and between $16 million and $27 million in nonrefundable fees paid to bail bond companies, according to the report. The report says the fees, which are likely higher because bond companies do not always adhere to legal limits, represent a “significant transfer of wealth from low-income communities.”
“The commercial bail process is egregious to me, and we have to push the judiciary,” Stringer said in an interview. “Part of doing this report is to put the marker down and say ‘You’re costing the city money, you’re further putting poor families into poverty. Bail is not supposed to be punitive, and there are alternatives that the judicial system should be looking at.’”
Calls to end commercial bail are part of a broader movement to fix a pretrial release system that many believe is broken. The city is experimenting with ways to reduce its jail population with a goal of closing the Rikers Island jail complex. And as state lawmakers consider eliminating cash bail, an idea boosted by Gov. Andrew M. Cuomo in his State of the State address, some prosecutors have stopped requesting it for most misdemeanor offenses.
But for now, Stringer and others are pushing for meaningful changes under the existing law, which gives judges options to set bail with bonds that can be paid in court with little to no money. Unlike commercial bail bonds, payments are returned when the case is resolved.
While current bail reform efforts mainly target people charged with misdemeanor offenses and nonviolent felony crimes that do not involve domestic violence, Stringer’s proposal could aid any defendant eligible for bail. Emerging evidence suggests that alternative bail forms are just as effective in making sure people return to court. In one analysis released in September, the Vera Institute of Justice tracked 99 cases where judges set alternative bail options. Sixty-eight defendants were released on bail and five were freed on their word, and they returned to court at roughly the same rate as people who are released without bail conditions or freed after paying cash or posting a bond.
“The problem is old,” Insha Rahman, the author of the analysis, said. But in the state bail law, she added, “the solutions have been there since 1971.”
Not everyone is thrilled with the idea. Michelle Esquenazi, the owner of Empire Bail Bonds, one of the largest bail bond companies in the state, says her industry keeps people out of jail, while sparing taxpayers the cost of apprehending those who miss court appearances.
“The bail bondsman is vilified,” said Esquenazi, chairwoman of the New York State Bail Bondsman Association. “We’re an integral part of any successful criminal justice system.”
The use of commercial bail bonds in the city has risen even as crime and arrests have fallen, and they now make up more than half of all bail payments. In 2017, there were 12,345 private bail bonds executed in the city — a 12 percent increase from 2015 — with a cumulative value of $268 million, according to the report.
The commercial bonds are attractive because paying the full cash bail is impossible for many defendants. Contracting with bail bondsmen allows them to stay out of jail for a smaller upfront cost.
Lucian Chalfen, a spokesman for the state’s unified court system, said judges made decisions about which types of bail to assign based on what prosecutors and defense attorneys request in court.
“We encourage judges to consider the use of all types of bail,” he said. “We have done training outlining the various types and simplified the forms, but ultimately the decision comes down to judicial discretion.” Batista was arrested after she intervened when her brother attacked her sister in their family’s ninth-floor apartment in the Webster Houses, a public housing complex in the Morrisania section of the Bronx, she and her lawyer said. Frightened, she approached her brother with a kitchen knife, then tried to retreat. But he lunged at her and was stabbed near his heart, requiring surgery. Her bail was set at $50,000 cash, or $100,000 bond.
Her family paid $12,000 to Marvin Morgan Bail Bonds, which required her to wear a $300-per-month ankle monitor for 16 months. The bondsman gave them one receipt showing the $5,740 in “returnable collateral,” while another, for $6,260, does not specify what was covered.
“That amount of money for you to be found not guilty,” said Batista, now 31, who spent two weeks in jail and was suspended from her job while the case was pending. “That’s crazy.”
Vague laws and lax regulation also leave people vulnerable to the whims of bail bondsmen. Their regulator, the state Department of Financial Services, received 111 complaints over the last three years alleging a range of misconduct, including unauthorized fees and unreturned collateral.
Since 2013, the office of the New York attorney general, Eric T. Schneiderman, has investigated 25 complaints against bail bond companies, including Marvin Morgan Bail Bonds. The company could not be reached for this article because phone numbers listed for it were disconnected.
Belva Service, a home attendant, filed a complaint against the company in 2016 after it refused to return the collateral she paid for her son, who was arrested barefoot and disoriented in Brooklyn on felony charges. Her son, who is schizophrenic, needed medical attention, she said.
Marvin Morgan Bail Bonds charged her a $1,760 premium, a $1,000 courier fee, which was illegal, and took $1,500 for collateral, according to Nick Encalada-Malinowski of the nonprofit group Vocal-NY, who was then a social worker for the Brooklyn Defender Service. The company returned the collateral after her son’s case was resolved in the mental health court, but refused to refund the illegal fee until Schneiderman’s office intervened in a letter.
“You become very vulnerable in this position,” Service said, “and this is where they come in and make their money, because you need them.”