The freedom test

On Tuesday morning, accused burglar Mary Thornton experienced an everyday blessing of the New York City courts: a judge released her without bail, on the expectation that she will come back for her trial in October.

The 48-year-old stands accused of taking a cable box from The Camden Hotel, a Upper West Side single-room occupancy residence where she lives, and putting it in her room. It’s a charge she denies, but on Tuesday the prosecutor asked for Thornton’s bail to be set at $15,000, in part because of a checkered rap sheet that included a felony charge from 25 years ago.

Instead, Judge Anthony Ferrara ordered her to be released on her own recognizance. “I would have been sitting in there forever,” said Thornton outside Manhattan’s Central Booking, explaining that she could not have afforded a bail bond if the judge’s decision had been different.

A survey at arraignment keeps most defendants out of jail before trial. AP Photo/Bebeto Matthews

The judge did not make that decision alone. Like virtually everyone arrested in New York City, Thornton was interviewed after her arrest by a representative of the Criminal Justice Agency. Since 1973, this non-profit organization has interviewed most people arrested by the New York City police and issued a verdict of how likely a defendant is to fail to return for a trial date if he or she is released. The defense, prosecution and judge all receive the assessment, and can use it to determine the condition of release at arraignment.

In 82 percent of the cases in which CJA found a defendant to be low risk in 2010, judges released them on their own recognizance.

“There are judges who will arraign a case in absence of a CJA form, but those are few,” said Jerome McElroy, the organization’s executive director.

More than two-thirds of arraigned defendants in New York City whose cases are not disposed right away are released on their on recognizance. The overwhelmingly majority return to court for their trials: In 2010, CJA found that the failure to return rate of those they assessed as low risk and were released on their own recognizance was 8 percent.

Mary Thornton’s interview pegged her as “high risk” because of her lack of fixed address or phone number as well as her past record. But the odds are still good that she’ll return for her court date; 4 in 5 high-risk defendants do, according to the CJA. Only accused murderers and those whose rap sheets aren’t available don’t get an assessment.

CJA conducts an estimated 300,000 interviews a year with a staff of under 200, on a budget of about $15 million, all of it supplied by government. In order for CJA to deliver its risk assessment within 24 hours — the maximum amount of time between arrest and arraignment allowed under New York state law — the organization employs about 110 interviewers who work in shifts seven days a week, around the clock. The actual interview usually takes place in one of the city’s five central booking locations and involves some 70 questions.

“What we look for is community ties,” said Peter Kiers, director of operations at CJA. “We look to see if a person has a phone, a New York City area address.” Interviewers also consider an individual’s criminal history – the number of convictions, felonies and misdemeanors. Every answer is inputted into a computer, which generates a risk level (high, moderate, low) based on a statistical model developed by CJA.

Decades of data and analysis by CJA has revealed interesting quirks in the predictive powers of certain questions. For example, whether someone has children isn’t as predictive of the likelihood to return to court as whether they live with parents, grandparents, a spouse or other family members. And whether someone is married isn’t as likely to predict the odds of showing up in court as whether the defendant is expecting his or her mother or someone else to be present at their arraignment.

“If they say yes, they get a point for that,” said Kiers. “Even if people say they are married, you don’t know the strength of the tie that is there.”

And there are questions that are unique to New York City. An older version of CJA’s interview asked whether defendants had lived in the same residence for 18 months, but it turned out to be an inaccurate predictor of risk because so many people move around the city in the perpetual search for housing. In other cities and states, that’s not the case and the question is a strong predictor of a defendant’s failure to return.

While courts in other states and cities now have their own variations on pretrial release, New York City pioneered the idea that defendants could be released without bail. Russian-born industrialist Louis Schweitzer visited a Manhattan prison in 1960 and saw that hundreds of people were stuck behind bars in the city, not because they had been determined to be guilty of crimes but because they didn’t have money to pay their way out.

Working with Herbert Sturz, a young journalist, Schweitzer came up with a radical idea: Why not just let more people out of jail without requiring bail at all? With Schweitzer’s money, the two launched the Vera Institute of Justice and the Manhattan Bail Project. Over the course of three years, the project found that by interviewing defendants about their employment history and family ties, they could give a judge a reasonable estimation of that person’s likelihood to reappear in court. Of the 3,505 people initially recommended by the Manhattan Bail Project to be released without bail, only 1.6 percent failed to appear at their trial.

Despite the embrace of Schweitzer’s radical idea since the 1960s, New York City’s pretrial system continues to more harshly penalize those that are poor. A 2010 report by Human Rights Watch reported that in cases where bail was set at $1,000 or less, 87 percent of defendants were not able to pay and remained in jail for an average of 15 days. Three out of four were accused of nonviolent, non-weapons related charges. The organization recommended that a supervised pretrial release program be developed for defendants who can’t afford bail, but are considered at some risk of not returning to court.

Initially, CJA resisted creating a program that might discourage judges from releasing defendants on their own recognizance. “If we offered an alternative, the courts would tend to use it,” explained McElroy. But recently, CJA began to develop such a program for those they deem at moderate risk of disappearing before trial.

A new law recently signed by Governor Cuomo will also aid those defendants who can’t afford bail. It will allow charities to post bail for poor and indigent people who are charged with non-violent misdeameanors and bails set at $2,000 or less. Unlike, bail bond companies, these charities can’t charge additional fees to defendants.

McElroy believes, much like the founders of the Manhattan Bail Project did, that the most just solution is to rid New York City’s courts of bail entirely. “Their belief was that money bail to provide an accused person with freedom was fundamentally unjust. Ideally, they would have wanted to replace the bail system entirely.”

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