The Game of Bail

The gunfight in a Manhattan steak-house left one plainclothes policeman wounded in the stomach, a bystander shot in the thigh and Joseph Gruttola on the run. Three more policemen chased Gruttola (who had been shot in the jaw), caught him and charged him with robbery and attempted murder. Then, to their indignation, the accused cop-shooter was released by Judge Bruce Wright on bail of just $500 in cash.

Mayor John Lindsay professed himself "dismayed"; Police Commissioner Patrick Murphy called the judge's ruling "a disgrace." Despite various legal maneuvers, however, Judge Wright held firm. "Bail is not a game of money to be won only by the rich," he said. "It is to assure appearance in court, and if the accused has roots in the community, then there is no [high] bail." Gruttola, the father of two, owns a home and runs a driving school and insurance business, and Wright refused to increase bail "simply because a public officer is the alleged victim."

That $500 fuss came at a time when the whole bail system is under attack. Last week, in fact, a commission studying the New York State court system despaired of the whole thing and recommended that bail be done away with. Instead, it proposed that all defendants be released until trial, except certain suspects who a judge thinks are not likely to return. "The possibility that a defendant might commit a criminal offense while on release should not be a ground for detaining him," it said.

The trouble with such an approach is that it would mean increasing the number of dangerous defendants on the loose. To counter that sort of threat, the Nixon Administration in 1970 persuaded Congress to authorize preventive detention in the District of Columbia. This law allows judges to hold suspects for up to 60 days if a hearing establishes that they are dangerous. The much-touted law-and-order measure has proved to be a bust, however. Federal prosecutors have only tried to use it against 20 suspects, and the move ultimately failed in all but four cases. Detention has not even been sought for more than a year, and TIME has learned that the Justice Department has quietly all but given up on the idea. One reason is that the necessary hearings are cumbersome; another is the resistance of civil libertarians concerned about the traditional presumption of innocence.

Pressures. The bail system, by contrast, achieves the same ends by disingenuously avoiding those problems. Astronomically high bail has, in fact, long been used to confine suspects who are considered dangerous. The Eighth Amendment does ban "excessive bail," and the 1966 Federal Bail Reform Act provides careful guidelines for federal judges. In state courts, however, exactly how much bail is excessive remains a matter for a judge's discretion.

Bail is also widely criticized because, in the words of the New York commission, it "arbitrarily discriminates against the poor" and puts those who cannot make bail under added "pressure to plead guilty." But precisely because of the latter reality, bail serves an unspoken purpose. Getting rid of it would very likely cut guilty pleas and further increase the already crippling delays in the courts.

Reform, rather than abolition, is thus the most likely approach to easing the bail problem. One principal target is the bail bondsman, who usually claims 10% of the assigned bail as his fee for guaranteeing the whole sum. Though little more than a marginal hanger-on in the courts, the bondsman often actually determines who will stay in jail and who will not. To try to eliminate him, Philadelphia and Pittsburgh have been successfully using a federal fund of nearly $500,000 to make the court itself (at the judge's discretion) the bondsman. In Philadelphia all but 1% of the total bail is returned to a defendant who appears, while Pittsburgh charges a flat $10 if there is no default.

Another reform involves the use of law students and others to interview defendants and make sure that bail is set fairly and swiftly. Such programs have been tried in more than 100 cities. In Washington only 2.3% of defendants released in this manner failed to reappear, a rate better than that of many large cities that use the standard system. The trick is to transfer such experiments into permanent programs.

When one operated by the private Vera Institute of Justice in New York City became a regular part of the court structure, it deteriorated, and the no-show rate went from 1.3% to 6.4%.

The sad fact is that the pressures of reality mean that the bail system is not about to end. Indeed, after a New York grand jury last week indicted Gruttola in the police shooting, another judge was asked to raise his bail and did so--to $25,000. Businessman Gruttola promptly met the increased price on his freedom, but only by putting up his home as collateral.

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