Blog Ipsa Loquitur

Anna Maria Barry-Jester and Mai Nguyen measured how bail works in New York City, analyzing over 100,000 cases handled by the largest public defense organization in the State. When you’re indicted by a grand jury, you’re arraigned – taken to the court and asked by a judge how you plead.

[We] found that how much bail you owe — and whether you owe it at all — can depend on who hears your case the day you’re arraigned. New York’s judges are assigned to arraignment shifts, hearing every case that comes into the court during that time. Because the assignments are random — judges hear cases solely based on when people are arrested and how busy the court is — we can identify whether defendants are being treated equally regardless of who hears their case. They are not.

In New York City, when clients of The Legal Aid Society who were charged with a misdemeanor in 2017 entered their initial arraignment, they had anywhere between a 2 and 26 percent chance of the judge setting a cash bail, depending on which judge was randomly assigned to oversee the court that day. For felonies, the range was even wider: anywhere between 30 and 69 percent. Those not assigned bail are likely to be released without having to pay, which means getting arrested on the wrong day can have a major consequence: You are more than twice as likely to have to pay your way to freedom. Can’t find the money? You’re stuck in jail.

There are a lot of interesting implications here. While I think the idea that the justice system’s imposition of bail is inequitable isn’t terribly controversial (in my circles, at least), seeing it quantified like this is striking. On the one hand, judges are people, and people aren’t identical. There will always be tougher judges and more lenient judges, so long as people are doing the job of setting bail after an arraignment.

But on the other hand, this is a little like having instant replay for called strikes in baseball, or offsides calls in ice hockey. What’s striking isn’t the fact that umpires and referees get it wrong sometimes, it’s how often that happens and what that says about all the times these decisions were made before we could review them qualitatively or quantitatively.