During the early days of the COVID-19 pandemic, New York City’s prosecutors made a concerted effort to send fewer defendants to the city’s jails before their trials, in order to protect the health of people awaiting their trials. They requested bail less often and supported early releases, contributing to a 30% drop in the jail population.
“We did it, in large numbers,” City Council candidate and former Queens District Attorney candidate and public defender Tiffany Caban told New York Focus. “In 21 days, they managed to release over 1,200 folks.”
Conditions in the city’s jails are once again at crisis levels, with overcrowding, surging violence, and a lack of access to medical care, food, and water contributing to multiple deaths of incarcerated people in recent weeks.
Defense lawyers, reform advocates and even the city Department of Correction say that the DAs should make a similar effort to request less bail while current conditions persist—but that so far, they’ve seen no change in prosecutorial practices.
“It’s business as usual,” said Amanda Jack, a public defender and member of the decarceral group Five Boro Defenders, adding that at a recent shift at arraignments in Manhattan, “for every offense that was bail eligible, the DAs requested bail and the judge set it.”
Public defenders practicing in Queens, Brooklyn, and the Bronx expressed similar feelings.
Prosecutors there have been requesting bail on “almost anything that’s bail eligible,” said one defense attorney in Queens who represents indigent clients, who requested anonymity to prevent retaliation against her clients.
“Many in the DAs office see what we see and understand that the conditions at DOC are truly horrific. We nonetheless continue to see bail requested—and set—in many cases at amounts far beyond the means of our clients and their families,” said Ann Mathews, managing director of criminal defense practice at Bronx Defenders.
The president of New York State’s prosecutors association rejected the notion that prosecutors are being overzealous in their bail requests. “To me that’s disingenuous, because we only ask, and the court sets the bail,” said District Attorneys Association of New York president Anthony Jordan, who is also the District Attorney of upstate Washington County.
Prosecutors’ requests are generally taken seriously by judges. So far in 2021, judges in Manhattan—the only borough for which statistics are available—have set bail in 63% of felony cases in which prosecutors requested bail. The median amount of cash bail requested in felony cases was $25,000, and the median amount set by judges was $10,000, a number far beyond the reach of indigent defendants.
New York Focus reached out for comment to each of the five borough DAs. Two responded, and one said that conditions at Rikers could be a factor in bail decisions, but did not provide more details.
“Bail amounts I’ve never seen before”
Zoe Adel, who helps supervise Court Watch NYC, a group of volunteers who monitor court proceedings, shared stories of several recent arraignments her group has witnessed.
In criminal court in Brooklyn on August 11, Adel said, prosecutors charged a woman living in a homeless shelter with violating a temporary order of protection and requested that bail be set at $2,500 cash, or $5,000 bail bond or partially secured bond. The judge set $1,000 cash bail or $1,500 by credit card, bond or partially secured bond. With no cash on hand, the woman was remanded to Rikers.
On August 17, also in Brooklyn, a judge assigned $7,500 cash, bond, or partially-secured bail to a man living in a homeless shelter accused of injuring an ex-partner in violation of an order of protection, Adel said. The prosecutor had requested that bail be set at $40,000 bond or partially secured bond, or $20,000 cash. He was also remanded to Rikers.
In some cases, defense attorneys say, bail requests have even escalated from pre-COVID norms.
“We’ve seen requests recently for bail in amounts that in 13 years practicing in Manhattan I’ve never seen before,” said Elizabeth Fischer, managing attorney of criminal defense practice at Neighborhood Defender Service of Harlem. “On misdemeanors, we’ve seen cases recently where the prosecution is asking for $45,000 bail, $50,000 bail.”
At a City Council hearing on September 14, Department of Corrections Commissioner Vincent Schiraldi pleaded with the city’s DAs to use supervised release for individuals awaiting trial rather than increasing the population of pretrial detainees at Rikers Island.
A de Blasio administration official said that expanding supervised release is within the prerogative of judges, and declined to say whether Mayor de Blasio supports its expansion.
“Supervised Release is assigned at the discretion of the individual State judges in a case,” said Colby Hamilton, a spokesperson for the Mayor’s Office of Criminal Justice.
“Work within the confines of what is currently in place”
Spokespersons for two of the city’s district attorneys returned New York Focus’ request for comment on whether their offices have adjusted policies for requesting bail due to conditions at Rikers.
“The DA is a strong proponent for no cash bail and has advocated for this from the start,” a spokesperson for Queens District Attorney Melinda Katz said. “However, today, we must work within the confines of what is currently in place. The DA seeks the least restrictive means to assure a defendant’s return to court.”
Bronx District Attorney Darcel Clark’s office told New York Focus that “Considering the conditions at Rikers Island is consistent with our policy and practice of determining the least restrictive options that will ensure a defendant’s return to court.”
“Accordingly, the Office factors in these conditions along with safety within our community when making our recommendations for bail,” spokesperson Patrice O’Shaughnessy said.
In New York, the only legal purpose of bail is to ensure that defendants return to court dates; judges cannot consider a defendant’s dangerousness in making pretrial decisions. Asked how the Bronx DA considers “safety within our community” when making bail requests, O’Shaughnessy said, “When making bail applications we stick to the factors enumerated in the bail statute, which include a defendant’s criminal history and outstanding warrants. Our job as a District Attorney’s Office is to always consider the community and public safety.”
O’Shaughnessy noted that fourteen defendants from the Bronx are currently incarcerated on bail for non-violent felonies, and added that six of them are being held on charges that the District Attorney doesn’t have authority over.
The offices of the Staten Island, Manhattan, and Brooklyn District Attorneys did not respond to New York Focus’ requests for comment. Brooklyn District Attorney Eric Gonzalez has called for increased staffing levels at Rikers in response to the crisis. Manhattan District Attorney Cyrus Vance and his likely successor, Alvin Bragg, published a joint op-ed urging Governor Hochul to sign a bill reducing incarceration for parole violations, which she did on September 17, along with ordering the release of 191 Rikers detainees.
Rikers’ population has trended slightly downward over the past week to about 5,800 detainees, but it remains above its pre-pandemic population, and far above the 3,800 it reached in April 2021, its lowest level since World War II.
“COVID-19 demands that we re-think who we recommend be held in county jail pre-trial and that we be flexible during this state of emergency,” Manhattan District Attorney Cy Vance said at the time, noting that over the previous two months, Manhattan’s incarcerated population had gone down by 45%.
By law, the purpose of pretrial detention on bail is to ensure that accused individuals make their court dates, allowing their criminal processes to proceed. But as the crisis has mounted, that purpose has been foiled by conditions on Rikers and staffing shortages preventing incarcerated people from appearing for virtual court proceedings.
“As the population increases at Rikers, people are not being brought to court, and when people don’t come to court, it’s hard to resolve cases, and so cases linger for a much longer time,” said Yung-Mi Lee, legal director of the criminal defense practice at Brooklyn Defender Services.
This article was updated with additional comments from Bronx District Attorney spokesperson Patrice O’Shaughnessy.