Judges impose money bail too often in Buffalo and the use of cash bail unfairly affects poor defendants who end up spending more time in jail simply they cannot afford to pay up, according to a new study by the Partnership for the Public Good being released today.
The organization is calling for an end to money bail for misdemeanors and non-violent felonies in the Buffalo area and wants the justice system to try alternatives, such as unsecured bonds and a text-messaging system that reminds defendants of their court dates.
"The system punishes poor defendants before their case is heard in court," wrote Andrea O Suilleabhain, deputy director at the Partnership, and Colleen Kristich, a master of social work candidate at the University at Buffalo, in their policy report "Cruelty and Cost: Money Bail in Buffalo."
The researchers found that they could not find any publicly available data on bail amounts in Buffalo.
"We had a really hard time trying to get this data," O Suilleabhain said. "Nobody is putting it into a data base.... In New York City, all of this data is transparent."
So the Partnership trained law students to be collect information at arraignments in Buffalo City Court. The court watchers observed 240 arraignments from late October 2017 and February 2018. The court watchers were in court on 27 days before six different judges, recording every case that was heard that day, usually between 15 and 20 cases.
"We feel it is a representative sample," O Suilleabhain said.
They found that monetary bail was set as a condition of release in 64 percent of the cases. The observers noted that only one of the judges "routinely asked defendants if they were employed and what they could afford to pay in bail," the report said.
The bail amounts that were observed for the study were also significantly higher than what is imposed in New York City courts, the study found.
The median bail amount was set "five times higher on misdemeanors in Buffalo, and twice as high on felonies," the study found.
When assistant district attorneys asked a judge to set bail, the court watchers found the arguments "tended to focus mainly on past failures to appear in court." The observers said a quarter of the defendants were wanted by another judge on a warrant or had previously failed to appear for a court date.
The observers also found racial disparities: They said white defendants were released without bail 17 percent more often than black defendants and 22 percent more often than Latino defendants.
The report points to studies that say there's no connection between "an amount of money and a person's likelihood of appearing in court or of avoiding illegal activity while on release."
The Partnership is calling for a range of reforms to bail, including an end of bail for all misdemeanors and non-violent felonies. They want to see an expansion of the use of "release under supervision," operated similarly to probation and simple measures like a text messaging system that would remind defendants when their court dates are coming up.
"We frequently see cash bail on misdemeanors," said Rebecca Town, a public defender with the Legal Aid Bureau of Buffalo. "You almost never see our city court judges veering outside of cash and bond. There are a lot of options out there."
She often sees clients who cannot afford to make bail, even when it may seem low. Of a cash bail of $2,500, she said: "That's low for you or me, but not for a lot of my clients."
In this year's state budget, Gov. Andrew M. Cuomo had proposed bail reforms including ending monetary bail for misdemeanors and non-violent felonies, but those didn't make the final cut.
Erie County District Attorney John J. Flynn reviewed the Partnership's report ahead of its release and said he supports many of the proposed reforms.
"I respect and applaud the time that they spent in doing this," Flynn said. "It is a worthwhile starting point."
The DA's office does not set bail – judges do – but it's the assistant district attorneys who ask for an amount. Flynn said he's already directed his ADAs to not ask for monetary bail in cases of most misdemeanors and non-violent felonies. He acknowledged that there are exceptions.
"If the individual has a history of not coming back to court then obviously I have to ask for bail," Flynn said. "Also, if the individual has an extensive history of criminal conduct, then I tell my ADAs: Use common sense. Look at it on a case-by-case basis. If the individual has a history of having disrespect for the court and court system, obviously, use your best judgment."
That said, he also is aware that criminal history alone doesn't determine whether someone will return for a court date. Having served as both a former Town of Tonawanda Court Justice and Buffalo City Court Judge, he said he saw many cases in which a defendant had "a long rap sheet" but a good record for always showing up for court dates. "In those case, I didn't put bail on them," he said.
He said he is open to reforms, such as those already in place for the opioid court which eliminates bail in favor of treatment. "I am open to any and all suggestions," Flynn said. "I'm very interested in ensuring that race is not a factor," in whether someone ends up in jail. "I'm interested in ensuring wealth and how much money you have is not a factor.... I want to ensure that no one is being held inappropriately."
Flynn said he couldn't comment on the specific findings on Buffalo's system of bail without looking at the raw data.
Flynn separately did a "snapshot" study about bail by looking at the county's jail population on a given day. He looked at March 15 and found that of the 1,028 inmates in either the downtown jail or the holding center in Alden, 751 were unsentenced prisoners. Of them, 342 defendants were there pre-trial and about a third of those – 122 – were being held on misdemeanors. Fifteen of those people had never been in the holding center before.
Although bail reform didn't make it into the final budget, Flynn said he expects Albany to take action soon. New Jersey recently did away completely with money bail. "There's still two more months left in the session," he said. "I'm anticipating there will be some movement in the next month and a half."