Confessions of a Sometime Public Defender–Bail Edition (continued)

Although bail determines who is jailed and affects the outcomes of the cases, it is set by people without professional training in making such decisions. Judges go to law school, but a legal education does not teach how to set bail. A bail determination is not a consideration of precedents or an interpretation of statutes, but a prediction about human behavior that requires training in disciplines other than law.

On-the-job learning about how to set bail was also limited because judges could not systematically learn from their decisions. New York City judges were not regularly given information about the consequences of their determinations. They did not learn whether the person with a $1,000 bail was able to post it, and if so, whether that person came back to court at the scheduled times. There can’t be improvement without feedback, but such information was not distributed. Even if it had been, it would have been misleading. It would have only told the judge about one kind of error—the released defendant who did not come back. There was no way for the judge to get information about another error—the detained defendant who would have come back if he had been released.

Judges, however, did get feedback in one circumstance. The criminal court judges setting bail generally operated largely in anonymity, but they could expect to see their name in the tabloids if they had set a makeable bail on a defendant who then committed some heinous crime after release. No judge wanted that. Judges surely learned that to avoid public obloquy, it was better to set bail too high than too low.

While in some utopian world, justice is blind and neutral and that the forces of law operate so that individual judges do not matter, we all knew that was not true. The good attorney tried to learn about the bail-setting proclivities of the judge on the bench compared to those of the judge who was to follow in the next session. Stories circulated that Judge Jones, for example, had once had a car stolen and invariably set higher bail than other judges for a grand larceny auto. If he was sitting in the next session, the goal was to try to make sure that all car theft cases got arraigned before Jones took the bench. When Jones was sitting, the goal was to delay the arraignment in hopes it would go over to the next session with another judge.

Judges liked by the defense were not usually liked by the prosecution and vice versa although perhaps most were just viewed neutrally. Some were disliked by all for their personal temperaments—needlessly demeaning or sarcastic and often not bright. At least one judge, however, was despised by prosecutors and defense attorneys alike for both his temperament and for his judicial practices in setting bail.

I will call him Judge Harold. He had the reputation of being smarter than other judges. I don’t know if that was true, but while many judges were educated in local law schools, he was the graduate of the Ivy League. He never said that he was more intelligent than everyone else, but he tried hard to project that he was smarter than you.

He ran roughshod over defendants, prosecutors, and defense attorneys. Judges were evaluated by administrative personnel on how many cases they could dispose of, which meant either a dismissal or a guilty plea. When a defendant with little or no prior criminal record was being arraigned on an “ordinary” felony, Harold would browbeat the prosecutor. Only misdemeanor guilty pleas could be entered in criminal court where we were. The prosecutor’s consent was required to reduce a felony to a misdemeanor, but Harold told the prosecutor that the charges were going to be reduced. The prosecutor could protest, but Harold would say it again, and again. He implied that if the prosecutor did not do that, then Harold was going to be incredibly rough on that prosecutor for the rest of the session, and rough on him in the future, too. Almost always the prosecutor would reduce the charges if there was going to be a plea of guilty.

Harold would then tell the defendant that if he pleaded guilty, he would order a sentencing report and would follow the recommendations of that report. The defendant could get up to a year in jail, but he might get less or even a sentence of no jail time. If the defendant did plead guilty, Harold said, he would release the defendant without any bail. But if the defendant was released and did not return to court for sentencing, Harold continued, when the defendant was picked up by the authorities and brought back to court, he would appear before Judge Harold who definitely would give him the one-year sentence. If the defendant did not take the plea offer, then the judge would, he said, set significant bail so that it was unlikely the accused would be released. When protests were made that he was using bail to coerce pleas, he would reply that a released defendant had hanging over his head the automatic year of jail if he did not return. This incentive to return, Harold maintained, was comparable to the high money bail. It was all equal, he would say.

Most of these defendants jumped at the offer. Often this was their first time in jail, and the day spent there had terrified and exhausted them. Whether guilty or not, they just wanted to get out. Little I might say would register with them. All they heard was, “If I plead guilty, I will get out of jail now.” Few thought about the later possibility about being sentenced to a year.

As promised, Harold set high bail on those would did not take a plea, and they were locked up. The normal course in those days was that if a defendant was expected to be in custody, the case was adjourned for three business days when a preliminary hearing would be held. The formal purpose of that hearing was to take testimony to see if there was reasonable cause to believe that the accused had committed the crime. If that reasonable cause was found, the case went to the grand jury that had to act within thirty days. But the court appearance three days after the arraignment also brought the case before a judge other than Judge Harold. Many of them would conclude that Harold had set unnecessarily harsh bail, and they would lower it.

Knowing this, Harold did one other thing: If the defendant refused the plea, Harold would immediately hold a preliminary hearing. Generally, this was over the objection of both the prosecution and defense because neither had talked enough with witnesses to be prepared. Harold did not care, and then during the hearing he found ways to demean the attorneys. I don’t remember a hearing where he did not find the requisite reasonable cause. This meant that the defendant who had been arrested a day ago and had been told that he could go home if he would only say that he committed the crime was now going to jail for at least thirty days waiting for grand jury action.

It was all coercive. It was not the proper use of bail. The adversary system enshrined in the Constitution fell to the wayside as the judge controlled the outcomes. The United States Supreme Court had commanded that pleas of guilty had to be voluntary, but these guilty pleas were hardly that. The criminal justice system in Judge Harold’s hand seemed dirty and slimy.

There was little to nothing that a defense attorney could do to prevent most of this. I was glad when my position changed so that I did not have to appear in front of Judge Harold, but he kept popping up in my mind years later when he wrote some books about criminal justice that were talked about frequently in the right-wing media. I thought that the books were garbage. He related horror stories without any citations or references. I certainly doubted that he had firsthand knowledge of them. He might say that for some technical reason, a court determined that the Miranda decision had been violated and as a result some horrible criminal was now free on the streets, but surely that had never happened in his courtroom. We defense attorneys talked about this, and no one knew when he had ever found a Miranda violation or an illegal search.

Many years later, when I had been in academics for a long time, a publisher asked me if I would review a manuscript of Harold’s. I replied that I was hardly a neutral reviewer, that I had practiced in front of Judge Harold, and that I had thought that he was a despicable judge. Furthermore, I thought that his previous books had been tabloid trash. Go figure—I was still asked to review the manuscript. That manuscript was not published, and although I don’t remember for sure, I think that I was given $100 worth of the publisher’s books.

(concluded September 18)