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Locked Up

NYC Will Pay Millions for Locking Up People Who Had Already Paid Bail, But It’s Still Doing That

As the City settles a major class-action lawsuit, it’s still dragging its feet releasing people who have posted bail.

3:30 PM EST on December 1, 2022

A DOC bus
Liam Quigley|

(Liam Quigley)

In New York City, the question of whether you will spend the weeks, months, or years before your trial locked in a cage on Rikers Island still frequently comes down to how much money you have. In the first half of this year, 82 percent of the people in New York City jails were there awaiting trial, half of them because they could not afford to pay bail. Judges are required by law to only set bail at an amount that defendants can afford, but they often disregard that law, and so the difference between whether you are sent to the chaotic, violent, and frequently deadly island gulag often comes down to whether you can pay for your freedom or not.

But as a class-action lawsuit expected to be settled this week makes clear, that’s not the whole story: Sometimes, the Department of Correction takes you to Rikers even if you can afford bail, and sometimes, it keeps you on Rikers even after you've paid it.

The lawsuit was brought in 2017 by the civil rights law firm Emery Celli Brinckerhoff Abady Ward & Maazel on behalf of a class of some 72,000 people who, since 2014, were held for hours and even days in New York City jails even after they paid their bail.

One of the named plaintiffs who brought the suit, James Lynch, was being held on Rikers when his sister posted his $500 bail just before 4 p.m. on March 29, 2017. About five and a half hours later, guards informed Lynch that his bail had been paid, and that he should prepare to leave. He gave his bedding to cellmates and waited for an escort out of his housing area. The escort didn't come. It wasn't until 9 o'clock the next morning that Lynch was finally brought out of his housing area—only to be locked in an intake area for another several hours. Nearly a day after his sister posted bail, Lynch was finally released. In the interval between his bail being paid and DOC getting around to releasing him, he had missed a court date and a bench warrant had been issued for his arrest. 

The problems giving rise to the widespread detention of people who should not be detained were manifold, said Debra Greenberger, one of the lawyers who brought the case. "The processes were all by fax," she said, "and so people's bail receipt documents would be faxed from one facility to another. And that required the fax to go through, it required the fax machine not to be broken. It required someone to notice that there's a fax on the fax machine, things like that. In this century, we shouldn't be doing important stuff like this by fax."

Even figuring out how frequently the Department of Correction was violating people's rights proved nearly impossible, Greenberger said, because "they didn't maintain records even close to comprehensively about what time people would actually leave the facilities, which made it very hard for them to do internal audits about how often they're failing to comply with the City law and the Constitution."

If the lawsuit put the Department of Correction on notice that it had a major problem with its bail procedure in 2017, it doesn't appear to have had any significant effect by 2019, when a devastating City Council report outlined the myriad ways the department was preventing people who are able to pay bail from doing so in a timely way, leading to unjustified incarceration of New Yorkers in violation of City laws.

Under the terms of the proposed settlement, which a federal judge is expected to sign off on this week, New York City does not admit that it did anything wrong in any of these cases, but it does agree to pay $3,500 to each person who was locked up unlawfully for more than three hours after paying bail—an amount that could top out at $300 million. (It will likely be far less because many people eligible to benefit from a class action settlement don't end up doing so.) The City has also agreed to spend $2.1 million on outreach to contact people eligible for the payouts, including phonebanking, direct mail, and advertising on social media; mass transit; and local TV, radio and newspapers.

So New York City taxpayers will be shelling out millions of dollars, some small fraction of the people who were unlawfully deprived of their liberty will get a few thousand dollars each, and the law firm that brought the suit will get a substantial chunk of change for its trouble. Whether the entire exercise will stop the Department of Correction from keeping people who can and have paid bail locked in cages is another matter.

"We can only hope that the City through this settlement recognizes the need to change what they have called their antiquated systems and processes," Greenberger said. 

But will the Department of Correction change? Has it changed? Is it still conducting its bail release operations by fax, and is its internal record-keeping so poor that it can't even tell how often it's unconstitutionally locking up New Yorkers it has no legal right to? We posed these questions to the DOC, and did not receive a response. 

In a statement provided to the New York Times, the DOC said, "The department for decades has operated on antiquated systems and processes to run our jails in the 21st century and the settlement of this lawsuit brings closure to that era." The statement echoes a theme that Correction Commissioner Louis Molina has been sounding a lot since his appointment, blaming ongoing ills in New York City jails on a previous administration. It's true to a certain extent: Most problems in the jail system have long histories. Whether the decision to pay out small settlements to some of the people affected by some of these problems "brings closure to that era" is another matter. 

"It's definitely still a prevalent problem," Arielle Reid, head of the Legal Aid Society's Decarceration Project, told Hell Gate. "We see it most often when people are trying to pay bail online or in person. It seems like a paperwork issue that could be fixed with better information sharing between DOC facilities."

If there are typos or problems in the bail paperwork, Reid said, DOC officials often won't alert the family or attorney, and will simply not release an incarcerated person, leaving everyone to wonder why they haven't been released. Cashier's offices where bail may be paid inside courthouses are open only during standard business hours, Reid said, making it difficult for people with jobs to pay bail. "DOC has made some efforts to improve bail release procedures," Reid said. "But it's still a real gauntlet."

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