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Posted on May 3, 2017


Aubrey Fox, Executive Director of the New York City Criminal Justice Agency, testified on Tuesday, May 2nd, at a City Council hearing held by the Committee on Fire and Criminal Justice Services to support bills written by New York City Council Members Rory Lancman, Vanessa L. Gibson and Melissa Mark- Viverito. The proposed legislation would require the NYPD to permit arrestees to access contact information, permit the delay of the formal admission of inmates to the custody of the DOC in order to facilitate the posting of bail and require the DOC to efficiently facilitate the processing of bail payments.  Mr. Fox’s testimony can be viewed at the following link, beginning at the 45:50 mark.  The written testimony submitted to the Council is provided below.

I want to thank the City Council for offering me the opportunity to speak to you today. I want to thank Speaker Mark-Viverito, Council Members Crowley, Gibson, Lancman, and Reynoso for their interest in improving the criminal justice system in New York City.

            I am the Executive Director of the New York City Criminal Justice Agency, the city’s main pretrial services agency. One crucial role we play is to interview almost all arrestees before their first court appearance and make a release recommendation to the Judge. This is based on our assessment of the likelihood that the defendant will return for their required court dates. In part because of CJA’s work, New York City has the highest pretrial release rate in the country. Seventy percent of defendants whose cases are not resolved immediately at arraignment are released to the community without conditions other than the requirement that they show up to court for future court dates. Defendant failure to appear in court is rare, which gives the court confidence in continuing to set these liberal release conditions. We seek to ensure that defendants show up to court for all their required court dates, which includes making hundreds of thousands of reminder phone calls and sending a similar number of letters every year.

            Having said that, there is still a substantial number of people who receive cash bail in New York City. In 2015, that number was close to 45,000.

            Taking an even deeper look at the data, in only about 10 percent of cases were defendants able to pay their bail immediately at court. An additional 10,000 defendants paid bail and were released within two days of arraignment, and an additional 8,400 paid bail and were released within a week. About half of those bailed were jailed until the conclusion of their case, which in many instances may be for just a few days.

            Why is that important? Because we know that even a few days of incarceration impose high costs on defendants and on the city. Short-term jail sentences are not only costly and inefficient, but increase the likelihood of future criminal behavior for the defendants who have been jailed.

            That’s why I commend the City Council for taking into consideration the bills that are before it today. Clearly there are a number of gaps to prompt bail payment that if filled, could not only increase the total number of people who are safely released into the community, but also increase the number who are released earlier on in the process.

            CJA has a unique perspective on this problem because of another program we operate, the Bail Expediting Program, or BEX. For defendants who meet eligibility criteria (bail set in the amount of $3,500 or less in Manhattan, Brooklyn and Queens, and $2,500 or less in the Bronx), CJA staff members interview defendants post-arraignment, contact family members and friends who can pay bail and operate a help desk in the Bronx where people can call with questions about the bail payment process.

            BEX has been operational in the Bronx and Queens for over two decades and was expanded in 2010 to include Brooklyn and Manhattan. In 2015, of the 45,000 defendants who had money bail set at their arraignment appearance, BEX helped over 6,000 pay bail and obtain release within two days of arraignment (as well as 2,000 who paid bail at court without ever going to Rikers). Defendants who receive CJA assistance were 80 percent more likely to obtain release within two days of arraignment than defendants who did not receive assistance from the program.

            BEX plays a very important role in making life easier for both the defendant and his potential surety. The bail payment process is bewildering for family members and reliable information can be hard to get. With BEX, an associate calls the family member or friend of an arrestee with bail and can give that person important information about how much bail needs to be paid, how to pay and where to go.

            We are also indispensable to the current nonprofit bail funds for several reasons. We establish whether a defendant has a personal surety able to pay bail (a key eligibility criteria for the funds – they can only pay bail for a defendant who could otherwise not pay bail on their own). We let the bail funds know that a case they are interested in has come out of arraignment.  And we provide space for bail fund staff to meet with their client.

            For both bail funds and personal sureties, CJA has the authority to place “holds” on defendants in DOC custody to prevent their transfer to Rikers Island as bail payment is arranged and we deliver cut slips to DOC after bail is paid to ensure that the defendant is brought out of correctional holding cells in a timely fashion. These activities often make the difference between getting a defendant out at court or having them go into pretrial detention. Once they leave the courthouse, it becomes more complicated and difficult to get them out, even if there is already someone identified who is willing to pay their bail. 

            Regarding the bills under consideration by the Council, we are very supportive of the effort to increase the amount of time we are able to “hold” defendants before they go to Rikers Island. As the agency responsible for placing and managing holds with DOC, we have long experience in making sure that they do not place undue burdens on the court and DOC staff. Most importantly, we only place holds on defendants when we have a high degree of confidence that bail will be paid. We place holds on about 2,000 cases a year, and in 70 percent of cases defendants pay their bail. However, there are many instances where we are unable to arrange for bail payment at court because of insufficient hold time. I have no doubt that increasing the length of time we can hold defendants at court would allow us to assist more bail payments.

            We are also supportive of legislation designed to increase the likelihood that a defendant has access to contact information at the time of arrest. This matters in at least two ways. First, if during our pre-arraignment interview, we get and can confirm that contact information provided by the defendant, it increases the likelihood that we would recommend this person for release. Second, not every defendant interviewed by BEX personnel is able to provide us with the contact information for a potential surety. In 2015 approximately 60 percent of defendants provided us with the contact information for a potential surety.

            Finally, we are supportive of legislation that improves how DOC manages bail payment procedures after a defendant has been arraigned and has left court. There may be lessons worth taking from CJA’s experience with bail expediting that could be usefully applied. We are happy to explore those potential lessons and their application with representatives at DOC.

            We are also exploring expanding our BEX program to ensure that all defendants who are potentially eligible receive our assistance. That includes expanding our program to Staten Island, improving our ability to identify eligible cases and potentially raising the dollar amount threshold for eligibility into the program.

            Thank you for your time and for the opportunity to share CJA’s work with you.  I am happy to answer any questions you may have.

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