The public debate about bail reform in New York is many things. Impassioned. Important. Infuriating. But it isn’t always enlightening.
For those who haven’t been following closely, last year the New York State legislature passed a set of fundamental reforms to the criminal justice system that included eliminating bail in the vast majority of criminal cases.
This effectively means that judges can no longer detain 90 percent of defendants while their cases are pending— with a handful of exceptions for those who have been charged with particularly violent offenses.
The new law, which was passed and signed into law with little public scrutiny or discussion – no hearings, no blue-ribbon commissions, no formal reports — went into effect on January 1.
And then all hell broke loose. That is, if you listen to some of the most strident opponents of the reform.
In a system that handles more than a thousand cases each day, some critics seized on a handful of defendants whose release appeared particularly problematic: an assault case that was classified as an anti-Semitic hate crime, a chronic bank robber who wondered aloud why he had been allowed to go free, and others.
Rush to Judgment
Just weeks into the new dispensation, critics had already rushed to judgment: crime was up and the new law needed to be amended.
For their part, some advocates of the new bail reform were engaged in their own campaign of obfuscation. Concerns about public safety were often decried as “fear-mongering.”
The argument that judges should be able to consider the potential harm to society that a defendant might inflict during the pretrial period—an approach adopted in many other parts of the country— was dismissed as sending New York back to the “dark ages.”
The net effect of all this political maneuvering on both sides has been to ratchet up the temperature of the debate.
And lower the intelligence.
Let’s be honest: the changes to the bail process implemented in January will, in the short run, increase crime. This is a simple matter of logic: thousands of people who previously were held in custody will now be released. Some percentage of these defendants will commit new crimes. We should not deny this reality.
A more edifying public debate would explicitly acknowledge that in a small subset of cases there is a real tension between protecting the rights of individual defendants and protecting the safety of the larger community.
(In the vast majority of criminal cases, this tension effectively doesn’t exist: most criminal defendants are not an immediate risk to commit a violent re-offense.)
Bail reform effectively conjures up the eternal debate between Mr. Spock and Captain Kirk on Star Trek: do the needs of the many (New Yorkers) outweigh the needs of the few (defendants)?
When is it acceptable to detain someone because they might harm others (or themselves) even though they have not yet been found guilty of a criminal offense? Reasonable people can disagree on the answers, but we don’t seem to be asking these questions in a way that does justice to their complexity.
Another important question that we need to ask is this: How will we know if the new bail law has worked or not?
Forming firm conclusions after a few short weeks makes little sense. Success has to be judged along multiple dimensions and across a lengthy study period.
A credible argument can be made that the short-term public safety gains from more pretrial detention will be offset by the longer-term public safety gains that may well result from expanding the release of defendants.
There are real-world benefits to be gleaned from helping people avoid time behind bars: parents who won’t be air-lifted out of their families, vulnerable people who won’t be exposed to harsh treatment, communities that won’t be disrupted by a loss of brainpower.
In the end, the new bail law may make New York a better place, with stronger families, healthier neighborhoods, and yes, less crime.
Here then is one area where it might be possible to get advocates and critics of the new bail law to find common ground.
Even as the political fight over whether to amend the law rages, let’s agree to devote the necessary resources to a rigorous, independent analysis of its impacts, so we can make informed judgments over whether it ultimately succeeds or fails.
Greg Berman, director of the Center for Court Innovation since 2002, and co-author of Start Here: A Road Map to Reducing Mass Incarceration, will be leaving next month to work on selected writing projects. His successor will be Courtney Bryan.