Last spring, New York passed a new bail law that recently went into effect. Bail is a method to ensure people return to court by allowing defendants conditional release in exchange for money that they forfeit if they fail to appear. The new laws lay out a framework for pre-trial decisions to be guided by the level of offense and the specific charge — notably prohibiting judges from imposing cash bail on defendants charged with misdemeanors and most nonviolent felonies. Judges still have the option to impose cash bail on those charged with violent felonies. As a result of these reforms, 90% of arrests are now subject to release without bail, opposed to 79% percent under the old laws.
These new laws are the culmination of several years of pushes for change and a shifting cultural attitude towards bail. In 2015, Kalief Browder tragically took his own life shortly after his release from Rikers Island. Browder had been arrested at the age of sixteen and was incarcerated for three years — two of those years being in solitary confinement — on $3000 bail. The charges against him were dropped. This publicized example of the cruelties that lie within the cash bail system spurred real momentum for its reforms. In January 2018, Governor Andrew Cuomo declared in his State of the State address that Browder “did not die in vain.” Cuomo added that he would enact a series of criminal justice reforms in order to “make it right.”
Since these reforms have been adopted, they have faced heavy backlash. Across New York State, critics and law enforcement officials say the new laws will put dangerous people back on the streets while they await trial. A Siena College poll found that most New Yorkers think bail reform is bad for the state.
New York Republican Chairman Nick Langworthy criticized Democrats for passing reforms that amount to “an assault on civilized society, public safety, and law enforcement, and on criminal victims and the people and the taxpayers of the state of New York.”
The New York Post published a critical article reporting the NYPD being forced to ask federal law enforcement for backup to apprehend a serial-robber after he had been ruled a non-violent defendant. Even self-proclaimed progressive Democrats indicated a willingness to backtrack and modify the law after a series of anti-Semitic incidents.
But bail has little effect on the likelihood of defendants returning to court. After the Bronx Defenders bailed out 150 people, 95% of their clients attended every court appearance, and almost 50% of the cases were dismissed entirely. The high return rate fundamentally undermines the supposed purpose of bail — incentivizing defendants to show up to their court dates because they have a financial stake in their appearance. Furthermore, the fact that half the charges were dropped indicates that prosecutors were overcharging the defendants and hoping their inability to post bail would induce guilty pleas. ‘
The reactionary pushback to NYC’s specific bail reforms only bring up dated fears and bigotry against the poor. Being required to pay money to get out of jail unequivocally and unfairly targets the poor. A large portion of the detainees simply don’t have the ability to pay bail — the nationwide median bail amount of approximately $10,000, despite 4 in 10 adults reporting they would not be able to come up with $400 for an unexpected expense. Crucially, cash bail has not been proven to keep communities safer. In fact, it may have the opposite effect — defendants who are held for even a short amount of time, as opposed to those who are released during the pre-trial period, are more likely to commit a future crime.
Additionally, some of the backlash may stem from a perception that pre-trial detention is part of the punishment for crime, so defendants who are released are seen as getting away with something. Punishment before trial is fundamentally at odds in a legal system where defendants are presumed innocent until proven guilty. Furthermore, unlike other states that have adopted similar bail statutes, New York has precluded judges from taking into account public safety when setting bail since 1971. Any judgments of declining public safety in response to the new cash bail laws must date back to the 1970s in order to hold water. So, not only are many of the critiques of the cash bail reforms simply thinly veiled fears of the poor, but they also seem to misunderstand both the purpose of cash bail and the New York legal system entirely.
The concept of cash bail is needlessly archaic, barbaric and ineffective. It should be weeded out of our criminal justice system entirely. It has been proven time and time again to be ineffective and disproportionately affect the poor. While total erasure may be too radical for the time being, New York’s newest bail reforms are certainly a step in the right direction.
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A version of this article appeared in the Monday, Jan. 27, 2020 print edition. Email Emily Dai at [email protected]