Bail reform in New York State was meant to address an imbalance in the state’s judicial system. Wealthy people, even wealthy people who have committed crimes, could get out of jail if they …
Bail reform in New York State was meant to address an imbalance in the state’s judicial system. Wealthy people, even wealthy people who have committed crimes, could get out of jail if they could afford to pay bail. People who could not afford their bail would sit behind bars until their trial came around.
Sometimes in New York City, the pretrial detention could last for years at a time. In one extreme case, a teenager from the Bronx named Kalief Browder spent three years in New York’s notorious Rikers Island prison. He was charged with stealing a backpack, and his family could not pay the $3,000 it would have cost for him to get out of jail. He was finally released because of a lack of evidence. In 2015, he hanged himself.
The bail reforms that the state legislature passed last year, and that the governor signed, were meant to address inequities in the legal system such as the ones Browder faced, not to open a revolving door for repeat offenders. Before the jail reforms were passed, more than 67 percent of state prisoners in the state prison system had not been convicted of a crime; they were in prison because they could not make bail. The consequences of these pretrial incarcerations were serious: People who had not been convicted of a crime lost jobs, housing and even the custody of their children. The negative impacts were borne by the most vulnerable in our society, especially affecting people of color. Even law enforcement professionals agreed the system was unfair and ripe for reform.
But, on the other side of the issue, some people who should have been held behind bars were set free on their own recognizance, including people arrested in Sullivan County for major drug offences. The tabloids latched onto a story about a man who robbed a bank who was released under the bail reform laws, and immediately robbed another bank then another a few days later. (He has since been sent to jail by a federal judge.)
In that case, the charge was grand larceny, which is not considered a violent crime, and the suspect did not brandish a gun or weapon. He also did not physically harm anyone, so under the reformed bail laws, he was released.
Critics of the bail reform are calling for blood, but they aren’t addressing the issue that prompted the changes to the system, which was inequity amongst the haves and have-nots in the criminal justice system. Most often, critics say that judges should be able to consider the danger a suspect poses to society in considering whether or not the suspect should be held before trial. That would be a significant change.
Judges have been prevented from considering the potential dangerousness of a suspect when considering bail since 1971. The only measure judges are supposed to consider when determining the level of bail for a suspect is the likelihood of the suspect returning to the courthouse on a trial date. Of course, that doesn’t mean that judges were not actually using dangerousness as a guideline without naming it so. With the voices of protest increasing, it seems likely some form of tweaking of the bail reforms in New York will take place this year, perhaps similar to those proposed by State Senator Jen Metzger.
New Jersey updated its system of bail in 2017 in a way that allowed more people to remain free before trial, but also gave judges some discretion over pretrial incarcerations. The bail industry predicted a spike in crimes in the state in the wake of the reforms, but a report from the Administrative Office of the Courts said the spike never materialized. The report said the people released instead of jailed were no more likely to commit a crime than under the old system.
A press release from the court also says the New Jersey reforms are working. “New Jersey’s jail population looks very different today than it did when the idea of reforming the state’s criminal justice system first took hold,” said Judge Glenn A. Grant, acting administrative director of the courts. “The state’s jails now largely include those defendants who present a significant risk of flight or danger to the community. Low-risk defendants who lack the financial resources to post bail are now released back into the community without having to suffer the spiraling, life-changing consequences of being detained for weeks and months while presumed innocent.
“The jail population study showed 6,000 fewer people incarcerated under criminal justice reform on October 3, 2018 compared to the same day in 2012. That included approximately 3,000 fewer black defendants, 1,500 fewer white defendants and 1,300 fewer Hispanic defendants.”
The bail system reforms in New York State were more sweeping than those in New Jersey. Supporters rightly point out that the data on the New York reforms have been collected for only a few weeks. And while the new system might need a tweak or two, the instinct to rid the system of some of its inherent inequity was a good one and should not be abandoned.