Despite New Rules, NYC Is Still Jailing People Long After They Post Bail

In October, D.R., a Bronx resident in his 20s, was arrested on an assault charge and spent the night in jail. The next morning, his mother posted his bail. That should have been the end of his stay in jail. But instead of getting out, D.R. was moved to the Vernon C. Bain Center, a floating jail barge in the Bronx. The line to use the jail phone was too long for him to call his family, so he spent another night behind bars, unsure of what was happening.

“You got me into your system fast as hell,” D.R. says he remembered thinking. “Why can’t you get me out just as fast?”

His family, meanwhile, was trying to find him. The staff promised he would be released that morning, says Elizabeth Bender, an attorney at the Legal Aid Society. But D.R. stayed in jail through the afternoon. A fight broke out and his unit was placed on lockdown. D.R. had to waited several more hours before corrections officers finally took him out and began his departure process. Twenty-seven hours after his mother posted his bail, he was released, according to Bender.

Last year, New York’s City Council passed a raft of new rules intended to protect people like D.R. from unnecessary detention after they have posted bail. One law extended the deadline for a defendant’s family members or friends to get to court and pay someone’s bail before they would be transferred to jail. Another requires that the Department of Corrections release people a few hours after their bail had been posted.

But the Department of Corrections regularly flouts these release rules, according to a new analysis conducted by the Bronx Freedom Fund, an organization that posts bail for poor Bronx residents to help them avoid pretrial detention.

Of the 238 clients the Bronx Freedom Fund bailed out from jail between April and September 2018, 76 percent were not released within four hours of their bail being posted, as required by one of the new 2017 laws. Of their 93 clients bailed out from jail January through March 2018, when the law’s rollout allowed for a five-hour post-bail release, 62 percent were not let out within the legally required time frame.

You got me into your system fast as hell. Why can’t you get me out just as fast?

D.R. a Bronx resident

The report also criticized the DOC for failing to give defendants’ families and friends adequate time to bail them out. Before the new laws were passed, the DOC could give someone two hours to bail out an arrestee after arraignment, and delay transferring the person to jail. One of the 2017 laws extended that time window to between four and 12 hours. But since the law’s enactment, the Bronx Freedom Fund says it has not seen “a single client held for more than 2 hours” before being shipped to jail. This failure results in detainees spending a full additional day behind bars, the report notes.

Even just a short stint in pretrial detention can destabilize people’s lives, making it harder to stay employed and take care of children, while making it more likely they will plead guilty just to get out of jail. D.R. says the extended stay was especially painful. In March, he got into a car accident and hurt his back and right knee. But instead of spending the day going to rehab, he was stuck on the hard floor of the jail’s crowded intake area, struggling to lie down comfortably. “My right knee, I couldn’t keep it straight, so I tried to sleep through the pain,” he said.

At the Board of Correction’s monthly meeting on Nov. 13, a DOC representative acknowledged that the department was still not in compliance with the City Council’s bail reforms, several months after they went into effect. The representative told the board that the DOC “expected to be in compliance no later than mid December.”

Jason Kersten, the DOC’s press secretary, responded to the findings in a statement to The Appeal, noting that the department is “always looking for ways to improve the bail process and make it faster.” Kersten pointed to recent improvements in their release system, such as a “sophisticated online bail system” and “a twenty-four hour bail window at the Queens Detention Complex.”

The DOC said its stated policy, after bail has been paid, is to discharge people in custody within three hours. It noted that legal exemptions allow for some discharges to take longer, but said average discharge time generally ranges from two to five hours. It also told The Appeal that it regularly holds people at court, when requested, to help them make bail before they are bused to jail. From January through June, the department said, it delayed the transfers of 1,029 people, 741 of whom were released as a result.

Codifying policy is one thing, but until they start treating this as the humanitarian crisis that it is, the impact doesn’t make it past paper.

Elena Weissmann director of the Bronx Freedom Fund

The NYPD also appears to be flouting a bail reform law passed in September 2017, the report found. The law requires NYPD officers to help people they arrest access their contact information, which is often stored on phones that police have seized. Such information is important for people trying to find someone to pay their bail. But a survey of 141 Bronx Freedom Fund clients, included in the report, found that 70 percent said they were not given access to their contacts while in NYPD custody.

Sgt. Jessica McRorie, an NYPD representative, said in an email that the law allows for “the release of contact information to the extent practicable and in a manner consistent with all applicable laws and officer safety.” McRorie continued that such “information, when it is stored in a person’s personal property, will be offered to them while they are in the department’s custody and when the individual is due to be arraigned within 24 hours.”

But Pedro Serrano, an NYPD officer in the Bronx, argued to The Appeal that some officers don’t give people access to their phone numbers as a form of retaliation. “In the precinct they don’t want you to contact anybody,” he said in a phone call. “Grabbing their property is a form of punishment.” He said that he has never heard of any training about this relatively new City Council requirement, adding, “I’m surprised the percentage is not higher.” The NYPD did not respond to The Appeal’s inquiry about whether they have trained officers on this issue.

Elena Weissmann, director of the Bronx Freedom Fund, said in a phone call that the DOC and the NYPD need to make major departmental overhauls to comply with the new laws. “The NYPD and DOC simply need to prioritize this as the crisis that it is,” she said in an email. “Codifying policy is one thing, but until they start treating this as the humanitarian crisis that it is, the impact doesn’t make it past paper.”

Such failures can permanently weaken clients’ faith in the legal system’s ability to give them a fair trial, says Bender, the Legal Aid Society attorney. “It’s one type of arbitrary injustice to be held there on bail you cannot pay. It’s another to be held even though you have paid your bail,” she said in an email. “It’s easy to understand how that experience would undermine a client’s faith in our legal system, and people who lose faith in the legal system may choose to take a plea just to get themselves out of it.”

At a hearing on Thursday, New York City Council members are expected to publicly raise the DOC’s apparent inability to release detainees promptly after they have paid their bail. In an email, Rory Lancman, a councilmember from Queens who is running in the borough’s 2019 district attorney election, criticized the DOC and NYPD’s apparent lack of compliance with bail reform laws.

“It is a disgrace that the city has failed to implement key bail reform measures passed by the City Council last year, including my bill to ensure individuals have access to loved ones’ contact information after an arrest,” he said, referring to the bill he sponsored that requires NYPD officers to give people access to their contact information. “I will be demanding answers from the administration at Thursday’s hearing, along with a detailed plan to make certain that the city promptly complies with these laws.”