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Why We Can’t Go Backwards on Bail Reform

For the prosecutors and law enforcement officials fear-mongering about bail, the real issue has never been about safety. It’s about power.

Jail cell
By: Simon McCormack Senior Writer, Communications

In 2019, the New York State Legislature passed a bail reform law that pushed New York’s criminal legal system in the right direction. The law – though it didn’t end cash bail altogether – was a nod to the idea that no New Yorker should be forced to sit in a jail cell before being found guilty of any crime.

The law took away some of the leverage prosecutors have to coerce accused people into pleading guilty. Nationally, 97 percent of cases are resolved through plea deals and only three percent go to trial. A big reason why is that when people are locked in jail while their case proceeds, they have a powerful incentive to take a plea deal just to get out of jail. Prosecutors across the state are upset that this threat no longer exists for people accused of almost all misdemeanors and most non-violent felonies.

Rather than working to prove people’s guilt in court, district attorneys across the state instead ramped up their opposition to the law. They were joined by police departments. Law enforcement agencies understood that they could shift the blame for crimes they failed to prevent or solve onto the bail law, while insisting they were doing everything they could to keep the public safe.

Unfortunately, these deceptive efforts against the bail law have already partially succeeded. Rather than investing in proven solutions to reduce the cycle of incarceration, like mental health care, housing, and restorative justice and violence interruption programs, politicians backtracked. In 2020, New York rolled back some of the 2019 reforms, increasing the number of offenses that are now eligible for bail.

Now this year, prosecutors, police departments and others who benefited from the pre-2019 status quo are back at it again, determined to drag our state even further backwards than we were before.

What the bail law does

New York’s bail law currently eliminates money bail for most misdemeanors and nonviolent felonies. Those accused of these crimes are either freed without restrictions while their case plays out, or released under certain conditions like electronic monitoring. The law also requires police to issue appearance tickets to people charged with some low-level minor offenses, rather than taking them to jail.

Under the new law, judges are much more likely to look at alternatives to pretrial incarceration as conditions of release, such as drug treatment programming and other services that help people succeed in their community.

Overall, bail reform has allowed thousands of people to hold on to their jobs, maintain connections with their family and communities, and avoid the increased risk of catching COVID in jail. Prior to bail reform going into effect, these New Yorkers would have had to sit in jail, in often dangerous or even deadly conditions, even though they hadn’t been convicted of any crime.

Punishing people for crimes they haven’t committed

One idea that bail reform opponents have latched onto is punishing people preemptively, before they’ve even been accused, let alone convicted of any crime. Advocates for a so-called “dangerousness standard” want judges to be able to hold people in jail whom they think could commit crimes if they are released.

New York’s criminal system has never allowed judges to guess which people will commit crimes and then penalize them – not based on actual offenses – but on the assumption that they might commit a crime.

Creating a separate category of offenses that might be called pre-crime, will undoubtedly put more people of all races behind bars. But, based on what happens in other scenarios in which a dangerousness standard is applied, we know it will especially hurt Black people and other people of color. In our racially unjust society, “dangerousness” inevitably becomes a proxy for what race a person is, at least in some instances.

There is no effective way to determine who will commit offenses in the future. Algorithms designed to do this are error-prone, and especially inaccurate when used to assess non-white people.

The racial impact of bail rollbacks

Any effort to hold more people in jail pre-trial is a threat to every New Yorker. Everyone should be wary of a society that presumes people’s guilt, and allows the powerful to unilaterally decide who should be incarcerated without due process. But the impacts of any bail rollbacks will not be felt evenly across our state.

A NYCLU report based on data that pre-dates bail reform found that in eight upstate counties, white New Yorkers were twice as likely to be released on bail as Black New Yorkers. Black New Yorkers were also twice as likely as White New Yorkers to spend the night in jail and face a host of collateral consequences after bail was set.

Bail reform doesn’t make us less safe

There is no evidence that bail reform has contributed to an increase in crime. New state numbers show only a tiny percentage of people released on bail under the new law were later accused of a serious offense. These numbers make it impossible to blame bail reform for an increase in serious crime.

For the prosecutors and law enforcement officials fear-mongering about bail, the real issue has never been about safety. It’s about power. Prosecutors want the power to coerce people – even those who have not done anything wrong – into taking plea deals. Police departments want to avoid any scrutiny of their failures and use bail reform as a scapegoat.

New Yorkers should not be fooled by this cynical attempt to drag us backwards.

As bold as the spirit of New York, we are the NYCLU.
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Civil Liberties Union