On a crisp afternoon in December, Dora Shaw
sent her 15-year-old son Derek to the store for groceries. Somewhere between
his house and the corner, two police officers stopped Derek, pinned his
arms behind his back, cuffed his hands, and read him his rights. Derek,
surprised and afraid, did not resist. The officers were holding a warrant
with his name on it for armed robbery in the first degree. As he was escorted
to a waiting patrol car, Derek asked if they could tell his mother why he
would not be coming home. No, they replied, he could call her from the station.
Derek climbed into the back seat of the patrol car and watched through the
windshield as his neighborhood vanished from sight.
For the past eight months, Derek has been held in two different correctional
facilities and appeared in three different courts. He is currently incarcerated
at the Manson Youth Institution in Cheshire, a level 4 high-security prison.
He sees his family only at court appearances, where he sits across the courtroom
with the other prisoners and wears a standard-issue orange jumpsuit, his
ankles shackled and his hands cuffed behind his back. The state’s evidence
against Derek is an affidavit implicating him in the robbery of a pizza
deliveryman. The form is signed by a neighborhood boy with a lengthy criminal
record. Derek has not been identified in a lineup and has no past juvenile
record. He has never before been charged with a crime. In the eyes of the
law, he is still innocent. In fact, he could go home tomorrow-if his family
could only post a $250,000 bond.
Almost everyone accused of committing a crime
in New Haven will stand inside Courtroom B, a lofty, dimly lit chamber on
the first floor of the Geographical Area (ga) courthouse on Elm Street.
Courtroom b was once majestic, with ornate moldings and other neo-classical
flourishes. Now, decades of grime and tiny cracks mar its walls, and the
gilt hands of the old-fashioned wall clock no longer keep time. But when
the accused are led into the chamber, they are probably thinking only one
thing: Will I go home today?
At arraignment, the first court appearance following arrest, the defendant
hears the charges against him and enters a plea of "guilty," "not
guilty," or "no contest." If he pleads innocent, the judge
sets a date for further proceedings and may impose whatever conditions he
deems appropriate to ensure the defendant’s appearance in court and to "protect
the safety of the community." These conditions can range from a simple
"promise-to-appear" to the payment of bail money or property given
to the court by the accused in exchange for temporary release. While sometimes
as low as $500, bail often runs in the hundreds of thousands or, in some
cases, millions of dollars. The court returns this amount if the defendant
comes to court and retains it if he fails to show. Most defendants cannot
afford to post their own bail. In such cases, the accused can pay a non-refundable
fee to a bondsman, who will then assume responsibility for the entire bond.
If the defendant cannot afford a bondsman, he stays in prison until his
case finds its way through the judicial system-a process that can span weeks,
months, or should the case go to trial, several years.
Connecticut state law and the Eighth Amendment of the u.s. Constitution
require that bail not be "excessive"-that is, it should not exceed
the minimum amount necessary to ensure a defendant’s appearance in court.
There are, of course, exceptions. If the defendant has a history of violent
behavior, for example, higher bail can be justified. But the purpose of
bail is to preserve the presumption of innocence by ensuring that a person
is not unduly punished before being convicted. A defendant retains his freedom
but still has an incentive to return to court. It is a contract between
the state and the defendant: In exchange for a reasonable amount of collateral,
the state agrees to honor the defendant’s presumed innocence, and the defendant
agrees to comply with the order of the court. But when bail crosses the
murky line between reasonable and excessive, this presumption of innocence
comes under threat. Bail then begins to seem less like a contract and more
like an abuse of authority.
Controversy erupted last January when a New
Haven judge imposed a $50,000 cash bond-a sum that must be posted in full
without the aid of a bondsman-on 19-year-old Brian Warner, a young man charged
with shoplifting five times in less than a year, possibly to feed a drug
habit. When Warner could not make bail, he returned to jail, where the following
morning officers found him dead on the floor with a bed sheet twisted around
his neck.
Warner’s suicide rekindled a debate that had first begun 10 years before.
In 1991, The Hartford Courant conducted an in-depth investigation of Connecticut’s
bail system. The paper examined over 150,000 cases statewide for possible
abuses and found that judges throughout the state regularly ignored the
recommendations of bail commissioners, third party officers who suggest
a bail amount based on an assessment of a defendant’s ties to the community,
past criminal record, employment status, the nature of the charge, financial
resources, and potential risk to the public. The study also found that black
and Hispanic defendants without a criminal record had to post on average
twice that of white defendants to get out of jail. The study singled out
New Haven as the leading culprit in setting disproportionately high bonds
for minority defendants and petty drug-offenders. (The Connecticut Judicial
Branch commissioned its own study of the issue in 1992. The enterprise was
under funded and far less comprehensive than the Courant study, and its
conclusions were ultimately both less specific and less damning.) A decade
later, little has changed in Connecticut’s bail system, and bail amounts
in New Haven are still rising.
This year, more than 10,000 people will pass through the doors of New Haven’s
ga court. Fewer than 400 of them will ever see trial. The rest must be disposed
of as quickly and efficiently as the resource-strapped system will permit.
For a judge, a disposition-the settlement of a case before trial-means one
less case on an already overcrowded docket. With such a high volume of cases,
many of which will end in convictions, the temptation to churn out fast
justice can sometimes overshadow the rights implied by the presumption of
innocence. In many cases, a compelling police report can suggest almost
certain guilt. Because a defendant who is locked up pleads guilty far more
readily than one still on the street, high bail simultaneously moves backlogged
cases and punishes those who appear guilty from the outset, making it an
alluring solution and a dangerous shortcut. A two-time drug offender back
in court on a new charge hardly strikes a sympathetic chord with a harried
judge who has seen hundreds just like him. But to punish a defendant with
high bail based solely on the likelihood of guilt amounts to a subversion
of due process. If he has committed the alleged crime, those who serve the
system must believe it will punish the guilty in due time. Unfortunately,
time is exactly what the system does not have, and in the press to move
cases, people can disappear behind docket numbers.
Last summer, a young woman named Jaquetta
Robinson made the trip from her Fair Haven housing project to the New Haven
Probate Court in the city’s downtown Hall of Records building. After a month
of agonizing uncertainty, she had come to temporarily surrender custody
of her two children and turn herself in to police. On May 9, officers had
raided Jaquetta’s apartment while she was out and found a stash of drugs
she now claims belonged to her brothers and cousin. Three weeks later, an
officer knocked on her door, again while she was out. Fearing the worst,
she called a policeman she had known since childhood and learned that a
warrant with a bond of $100,000 had been issued for her arrest. "Ever
since that day," she said, "I haven’t been eating. I haven’t been
sleeping. I’ve been sick all this week. My stomach hurts. I know there’s
no way I can come up with that money. I’ve been staying at a friend’s house.
I’m afraid to come home and that the police’ll see me."
Jaquetta continued to attend the weekly probation meetings for her only
previous offense, another possession charge. (She had been riding in a stolen
car with her cousin when police pulled over the vehicle and found several
bags of crack under the front seat. She served no jail time and diligently
attended probation meetings every week for the past year.) Her probation
officer remained ignorant of the warrant until the week Jaquetta "got
scared" and missed a meeting. When he called to find out why, she explained
the situation to him, saying that she wanted to "just turn myself in
and get it over with," but was terrified of being unable to make bond
should the judge decide to keep it at $100,000. By the end of the phone
call, Jaquetta had resolved to entrust her children to relatives and take
her chances in court. "I don’t wanna sign over my kids to nobody,"
she said, fighting back tears outside the Probate Court. "I don’t wanna
go to jail. I don’t wanna lose my apartment. But I know I don’t have that
kind of money."
The next morning Jaquetta was arraigned in New Haven court. After considering
the charges-possession, possession with intent to sell, and violation of
probation-the judge set bond at $175,000. Jaquetta would have to pay a bondsman
7 to 10 percent of that, up to $17,500, to make bail. Following arraignment,
Jaquetta returned to a prison cell, where she remained until her court date
on August 15.
In many ways, Jaquetta’s story typifies the kind of mass-produced justice
that goes on in New Haven’s ga court. She stands accused of possession and
violation of probation, two of the most common criminal offenses. She has
only one previous conviction and no history of violence. She continued to
attend probation after learning of the warrant for her arrest and then voluntarily
turned herself in. She has strong family ties and has been a long-time member
of the community. All of this suggests that she would be neither a serious
flight risk nor a danger to the public. So why is Jaquetta Robinson in jail?
In practice, when determining bail, judges have little time to consider
the prescribed factors, especially in overcrowded ga courts. The average
arraignment takes about five minutes, sometimes less. In that time, the
judge gets only a snapshot of each case-the defense’s position, the prosecution’s
position, the police report, and the bail commissioner’s recommendation.
"Sitting in the ga is like being a part-time traffic cop, a part-time
psychologist and a part-time social worker," says Judge Susan Handy,
the Chief Administrative Judge of Connecticut’s Criminal Division. "We
just have to do the best we can on each case."
Ultimately, the guidelines for judges to follow are just that-guidelines.
A judge has absolute discretion when determining bail. "Until challenged,
a judge could justify almost any bond," says Judge Handy. "Certain
judges will assess certain cases differently. You can assemble a room full
of judges and the range of bail for the same crime can vary from $5,000
to $250,000. It’s their individual decision." Handy admits that she
rarely takes financial resources into consideration when determining bail,
choosing instead to focus on the nature of the crime. Whether the defendant
is a woman from the projects or an uptown heiress does not sway her decision,
though another judge might consider wealth a crucial factor in deciding
bail.
Judges also emphasize that in many cases bail isn’t used to merely ensure
the defendant’s reappearance. And even defense attorneys agree that when
a person has been charged with a particularly egregious crime, public safety
should take precedence over personal freedom. If someone commits the same
crime multiple times, judges consider this pattern, even when the crime
is nonviolent. This is often the case with drug-related offenses, like Jaquetta’s,
in which the recidivism rate tends to be high.
In letter at least, the system does offer recourse for defendants who believe
their bail is too high. Following arraignment, the defense can file a motion
to reduce bond and continue to petition the court until the bond is reduced
or the case is dropped. "I think certainly in my experience, [the defendant’s]
attorney will file a motion for bond modification if they believe their
bond is unjust," says Judge Handy. "After all, that’s the only
way we know if someone thinks a bond is unfair."
But an appeal, a defendant’s only recourse against unfair bail, can take
time-time the accused spends in jail away from family, work, and other responsibilities.
"I don’t care if the appellate court bends over backwards to expedite
motions to review and get a quick hearing out," says Hugh Keefe, a
New Haven defense attorney. "And I think ordinarily they do give them
quicker attention than other things, but it nonetheless takes time. . .
. I don’t care if it’s as little as a week or two weeks, those are seven
or fourteen days where you have a defendant incarcerated who in many cases
shouldn’t be incarcerated."
Whether a defendant can make bail may also play a role in determining how
long he spends in jail if convicted. "In some of these cases,"
says Keefe, "people will do more time because they can’t make bail
than they will do ultimately if and when they are convicted." A defendant
out on bail has a much easier time assisting in his own defense. He is more
accessible to his attorney and can help in the process of gathering evidence
and in finding witnesses to testify on his behalf. Attorneys from different
racial and socio-economic backgrounds than their clients sometimes find
it difficult to locate witnesses in unfamiliar neighborhoods that are distrustful
of outsiders. In the case of Derek Shaw, it was months before the boy’s
attorney learned of a witness who could vouch for Derek’s whereabouts at
the time of the robbery, and still longer before he could locate the boy.
"It makes it much more difficult to handle a case from the defense
perspective if a client’s incarcerated," says Tom Ullman, head public
defender for the New Haven-Meriden Judicial District. "Once a client’s
out, you can go to their home. You can go to the scene of the alleged incident.
There are things you can do-you can find witnesses more easily. There are
many reasons that are advantageous for the defense to have someone out on
bond."
Public defenders, for their part, plead a lack of resources and an overwhelming
caseload. Throughout the state, the Office of the Public Defender handles
the largest percentage of cases in the ga courts, sometimes as much as 63
percent in large urban centers like New Haven. Were public defenders to
appeal every bond they thought unreasonable, the appellate court might be
moved to question what some judges in New Haven consider reasonable bond.
But then there are the clients to consider. As Ullman admits, "The
practical solution from the defense is never to cave in on those kinds of
cases. But sometimes you’ll have angry clients who are sitting in jail who
demand to get out and have the right to plead or not depending on what the
offer is. So it’s hard to say, ‘Look, on principle, sit in there for another
three months while I fight this for you.’"
In a current, highly publicized case, Judge Joan Alexander imposed a bond
of $2.5 million on John Paolella, a local bondsman charged with forging
millions of dollars in phony bail bonds. At a bond hearing on July 19, Hugh
Keefe, Paolella’s lawyer, challenged the bond before Superior Court Judge
Holly Abery-Wetstone, calling it "blatantly excessive" and an
"abusive discretion" of the court’s authority. "We have a
man with no prior record," an outraged Keefe told the court. "He
is 28-years-old, has no history of violence. He has lived in this community
his entire life." He made reference to cases in his long career as
a defense attorney in which violent offenders were released on much lower
bail, including a capital murder case in New London where the defendant
was out on house arrest. When Keefe pressed Abery-Wetstone to justify maintaining
the $2.5 million bond, she replied, "It makes sense when the defendant
perpetrated a fraud on the Court, which is what happened this case."
Keefe, stunned, informed the judge that she had just "reversed the
presumption of innocence," essentially prejudging the case. There is
no provision in Connecticut statute to justify a higher bond for a fraud
against the court as opposed to any other institution. Judge Abery-Wetstone
eventually lowered the bond to $1 million, which Paolella’s family managed
to post with the aid of a bondsman.
But not everyone can afford the bondsman’s fee, and those who cannot are
far more likely to put forth a guilty plea when the alternative is jail.
"Poor people sit in jail because they don’t have the funds to make
bonds," says Ullman. "It’s a coercive situation. … It puts
people in the position where if their choice is to take a disposition that
results in their freedom versus being locked up in jail another month, it’s
obvious what the choice is going to be."
Derek Shaw has spent over 240 days in jail
since his arrest at the end of last year. After his latest appearance in
court, another hasty and inconclusive proceeding, Derek’s attorney spoke
with Dora Shaw in a corner of the ga courthouse’s cavernous central hall.
Earlier that week, he had told her he expected Derek to receive a bond reduction
that would enable his family to pay a bondsman for his release. "If
we can get him out of there, we’ll take it all the way to trial if we have
to," he had said confidently at the time. But the reduction had failed
to materialize, and he was considering other options. "I don’t think
we should fight this thing unless we can get him out," he explained
to Derek’s downcast mother. "All he wants is out of there and you want
him home. I can talk to the prosecutor and see if she’ll give us a good
deal. He may only get a couple years. He might even get out before the case
would have gone to trial." Suddenly, Derek’s chance to prove his innocence
and the state’s chance to establish his guilt no longer mattered. If Derek
pleaded guilty, his family would not have to worry about bail, the state
would not have to build a case, and Derek, guilty or not, would go home.
Derek Shaw and Dora Shaw are pseudonyms.
Kathryn Malizia, a junior in Branford College, is research
director for TNJ.
