The bail-setting decision is crucial to a defendant, of course, because it can determine whether a person will be held in jail or will go home until the case ends. More than that, bail affects the outcome of the case, especially for what are often considered “minor” cases.

For example, if a woman had been arrested for shoplifting but was released from jail on bail, she was unlikely to take a later plea offer that would send her to jail for sixty days. In the normal course of the court business, she would not come to trial for months and months. If she stayed out of trouble for that time, she would tend to look reformed, and almost always, she would be offered some sort of no-jail plea. Indeed, what would be the point to the expensive process of locking her up if she is already reformed?

If, however, that same person was not bailed out, after several weeks in jail, having come to grips with a jail life and knowing the important fact that her incarceration would end in the not-too-distant future she was likely to take a plea offer of sixty days. Similarly, the minor drug offender out of jail might enter a treatment program, and if he appeared to be succeeding in it, sending him back to jail was senseless. This opportunity, of course, would not be available for the defendant who did not make bail.

Serious charges are affected in other ways. It is easier for a defense attorney to prepare a case when the defendant is out of jail. The best person to find witnesses and get them to cooperate with a defense attorney is often the defendant himself. For example, when there was a barroom fight, if an investigator or I went to that bar, few, if any, would talk with us. If the investigator or I went with the defendant to the bar, the likelihood that someone would tell us about what happened would increase tremendously.

When the defendant is out of jail, communication between attorney and client is easier. There might be frequent discussions in my office when the accused was bailed, and an hour interview took an hour of my time. When the defendant was in jail, the situation was much more complicated. I would have to travel to the jail at a time when I was permitted to talk with someone held there, and often in New York the defendant was incarcerated an hour or more from my office. After getting there, it could take from fifteen minutes to an hour to have the defendant produced in an interview room, and after the discussion was over, there was travel time back to the office. An hour interview could easily take four hours, and that meant less communication between attorney and client.

In addition, most attorneys feel that a jailed defendant is less likely to succeed at trial than one at liberty. Jurors, consciously or unconsciously, will think that if a defendant is already in jail, there must be a reason, and he should stay there.

Many efforts were made to prevent jurors from learning that a defendant was being held in detention. The accused at trial does not have to wear prison garb, and he was always brought into the courtroom and handcuffs removed before the jury would be allowed into the room. Even so, most of us felt that either through slipups or because the demeanor in some ineffable way is different between a jailed and a released defendant, the jury would somehow learn or sense that a defendant was not at liberty. On the other hand, if a defendant was out on bail, I would try to have conversations outside the courtroom or outside the courthouse at times when jurors might see us to try to send the subliminal message that maybe this guy really wasn’t guilty, or why wouldn’t he be in jail now?

While the setting of bail was hugely important, it was usually initially a quick, slapdash affair. The prosecutor could suggest what it should be; the defense attorney had the same opportunity; and the judge would make a decision. Various pieces of information were considered in the bail setting. The seriousness of the charges weighed heavily. As a general proposition, the more serious the charges, the higher the bail. It was not unreasonable to assume that a person who might be sentenced to fifteen years in prison was more likely to flee than one facing only a year. Not surprisingly, most people charged with murder were not granted any kind of bail and instead were simply remanded to pretrial detention. But don’t assume the accused murderer who is granted bail and released will not come to the scheduled court appearances if they are granted bail and released. I represented a person who had twice been convicted of the same murder but both times the convictions were reversed for errors at the trial. He was released from detention while he waited for his next murder trial. He diligently appeared for each court appearance. And he was found not guilty at his final, error-free trial.

A defendant’s prior record was also considered in bail-setting. Among the court papers was a “rap sheet,” which in my early days was often called a “yellow sheet” because it was printed on yellow paper. This, in theory, contained the prior record, but it seldom did. Generally, only the arrest charges leveled by the police were listed without the result of the case. Those arrest charges often made that prior case seem much more serious than it was. For example, as in one of my cases, a person had been initially charged with robbery when he was really accused of pushing a clerk as he tried to leave a store without paying for a bag of Doritos. In court the case was not treated as a robbery, and he pleaded guilty to a minor misdemeanor. Since the disposition was not entered on to the rap sheet, the prior criminal record would contain a robbery offense when it was a low-level larceny. Because his prior record looked worse than it was, higher bail than necessary might be set. The Legal Aid Society fought for more accurate records, and rap sheets did improve over time, but incomplete information was still frequent. (My favorite listed disposition was on the rap sheet of the defendant from one of my first trials. The defendant was about sixty years old, and he had been arrested dozens of times around the country for minor offenses. About two decades before I met him, he had been arrested in Terre Haute, Indiana, for vagrancy, a charge that is unconstitutional today. This arrest did have the disposition: “Put on the bus to Chicago.”)

The prior record was considered important for bail for two reasons. The lengthier the record the more it could be concluded that the defendant had a disregard for the law. The higher the disregard for the law, the less likely it was that the person would follow the law and come back to court for scheduled appearances. In addition, a person who was a recidivist was more likely to get a longer sentence if convicted than one without a record, and, facing more jail time, he had a greater incentive to flee.

Ties to the community was the third consideration for bail. Someone who was firmly embedded in New York was considered a better bail risk than someone else. Possible factors here were the length of time living in the City and at a particular location; a job and its duration; family; and so on. The first source for this information was an interview conducted after the arrest and before the initial arraignment. The interviewer filled out a form, which became part of the court record. A defense attorney, however, could help in establishing ties to the community. The form indicated whether information, say, a job, had been corroborated. Often it was not confirmed because the interviewer could not reach the employer. The interviewer could only call and may have failed to reach the boss because of the hour when the call was made, which could have been after working hours. Since the arraignment might occur twelve hours after the ties-to-the-community interview and corroboration might then be available, I or an assistant might be able to corroborate information that had not been confirmed before. It could make a great deal of difference in the bail decision if I could tell the judge that I had talked to the defendant’s employer, and, yes, he did work there, and he would have a job if released. In this and other ways, a defense attorney could affect the bail-setting decision.

Financial resources also came into play in the bail setting. The theory has been that a loss of the posted amount would be such a blow that those posting it would make sure that the defendant would show up in court. The impact of the forfeiture of, say, $1,000, of course, varies. To the wealthy it may mean little, but it could mean the world to someone just above the poverty level. Logic, then, suggests that bail should be set higher on a well-to-do defendant than on the less affluent. But that conclusion, however, is often counterbalanced since defendants with money probably have a good job or a home with equity that they wish to keep—in other words, they often have solid ties to the community.

The possible future dangerousness of the defendant, while it was not supposed to matter, also affected the setting of bail. In some jurisdictions, including federal court, a defendant can be jailed in advance of trial based on a prediction that he will commit violent acts before the trial—what is called “preventive detention.” New York’s statutes, however, said the only consideration for bail was to assure the defendant’s presence in court. New York had no legal preventive detention. Even so, we knew the judge was going to set higher bail on someone who looked as if he might commit violent acts before trial than someone who did not seem as dangerous. This seemed at least in part a normal human impulse even though it was against the law.

          (continued September 16)

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