Chief Judge Jonathan Lippman’s proposal to overhaul New York’s bail statute is a watershed moment for two reasons (“Lippman Proposes Bail System Fix, Expansion of Supervised Release,” NYLJ, Feb. 6). First, it brings the decades-long effort for pretrial justice full circle. The movement for a more rational and equitable bail system began in New York over 50 years ago with the Vera Foundation’s Manhattan Bail Project, which pioneered the concept of release on recognizance (ROR). Second, with reform on the horizon, it is time for a hard look at how current practices distort the statutory purpose of bail at the expense of the indigent accused. In doing so, we should consider the critical role and ethical duty of one institutional actor in particular: the prosecutor, who, to a great extent, dictates pretrial justice.
Last year, the Criminal Justice Agency (CJA) issued a report entitled “A Decade of Bail Research in New York City,” which concluded that, based on the “powerful statistical association” between prosecutors’ bail requests and judges’ decisions, prosecutors “dominate” pretrial decision-making, overshadowing all other factors. A judge’s pretrial decision, it turns out, is rarely harsher than the prosecutor’s request. When prosecutors consent to release, judges “nearly always” grant it. When prosecutors ask for bail, the amount set is almost never greater than the level requested. Conversely, with each incremental rise in the amount of bail requested, the odds of a judge granting release grow worse, and, if bail does get set, the higher the amount is likely to be. Judges might not consciously take their cues from bail requests, but the latter “establish parameters” for the former’s ultimate decisions.
