NY Bail Reform Called ‘Most Dramatic’ in Nation

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Chicago bail protest, 2019. Photo by Charles Edward Miller via Flickr

After someone is arrested, wrongfully or not, they face the same pretrial system as everyone else.

However, not everyone is treated the same — especially when it comes to money.

Despite a rollback of some of its provisions, New York State’s landmark reform of the money bail system has gone a long way towards ending the “criminalization” of poverty, a panel of justice researchers and activists said Wednesday.

The Bail Elimination Act which became law in January 2020 ended money bail for misdemeanors and most non-violent felonies. A subsequent amendment passed last spring in response to a lobbying effort by police, victims’ rights groups and state attorneys reduced the types of offenses exempted by the law.

But experts said early data indicated the law has already significantly reduced incarceration numbers in a system that disproportionately affected people of color.

Michael Gianaris

NY State Sen. Michael Gianaris

“[It has caused] a profound impact on justice in New York—a sea change,” Michael Gianaris, Deputy Majority Leader of the New York State Senate and author of the original act, told a webinar organized by John Jay College’s Center on Media, Crime and Justice, publisher of The Crime Report.

Sen. Gianaris, a Democrat from the borough of Queens, N.Y., called the law “the most dramatic” justice reform in the country.

Nevertheless, the issue of scrapping cash bail continues to stir up heated controversy.

It’s on the target list of “law and order” advocates in New York and elsewhere in the country during this year’s election cycle, with police groups and other opponents charging that softening bail requirements has already fueled an increase in crime.

Researchers told the webinar that such arguments were based on cherry-picking data, and warned journalists and the public not to get taken in by them just because they were advanced by supposedly reliable authorities like police.

“Law enforcement has always (gotten) a free ride, but they’re no less subject to their biases,” said Insha Rahman, director of strategy and new initiatives at the Vera Institute of Justice.

Rahman traced the roots of the traditional bail system to a popular conception that individuals accused of a crime needed to be held in custody before trial or subjected to stiff financial bonds not only to ensure they appeared for trial—but for public safety.

“We’ve collated public safety with incarceration, but incarceration can also harm public safety,” she said, pointing out that it can ensnare individuals in a system that destroys their livelihoods and families.

That’s exactly what happened to Amy Jones, a justice activist, who told her own gripping story at the webinar to illustrate how people of color were disproportionately impacted by bail requirements.

Amy Jones

Amy Jones

Jones explained that she was born addicted to opiates, and between the ages of 5 and 12, was sex-trafficked until her abuser died. At 18, she “aged out” of the foster care system, and found herself quickly shuffling through homeless shelters and rehab centers.

At 19, Jones was pregnant with her first child, but the government declared she made too much money at $9/hour working at a bank to qualify for healthcare and social services.

In an act of desperation, Jones committed what she described as a “survival crime” and stole from the bank where she worked. This began another cycle — one with local jails and federal prison that was intertwined with the bail system.

“[That’s how] poverty becomes criminalized,” Jones declared.

Since her release, she has been among the leaders of the fight to reform New York’s bail system—a struggle which she said was an effort to help the most vulnerable reclaim their identity and humanity.

Her advocacy, she said, stems from a “lifetime of healing from trauma.”

One problem, she pointed out, is that the media often distorts the issues behind bail reform, scaring the public into believing that “these people” need to be thrown in prisons.

These people are me,” she said. “they have stories and context.”

Khalil Cumberbatch, another panelist and former incarceree who is now a research fellow at the Council on Criminal Justice, chimed in:

These people are brothers, uncles, mothers, and sisters.”

He continued: “How do we deal with them? Deal with them the way you would want your family to be dealt with, with a level of humanity regardless of what the charges are.”

Khalil Cumberbatch

Khalil Cumberbatch

Cumberbatch cautioned it was important to remember that the person charged with a crime have not been found guilty of a crime; and that bail is simply “a leverage tool” to make sure the person returns for their court date.

“Cash bail has been used as a tool to punish people who are legally innocent,” Cumberbatch said.

And, Cumberbatch said, the public and media routinely forget that fact.

‘Fear Mongering’ and Bail Reform

But fear tactics continue to influence the public debate, the webinar was told.

A poll taken soon after the bail reform was enacted found 49 percent of New Yorkers surveyed agreeing with the statement that the law was “bad” for communities.

The media covered stories of newly freed defendants who went on to commit more crimes.

“If we don’t repeal this bill, it is just going to be lawlessness across this whole state,” said one New York legislator.

But the webinar was told there were no data that came close to justifying the warning.

Panelists noted that data about the effect of the COVID-19 pandemic on crime rates also had to be factored in.

“We cannot understand the full impact [of bail reform] yet,” said Erica Bond, policy director of the Data Collaborative for Justice at John Jay College.

Wednesday’s sessions were the first of a two-part webinar on bail reform, Bail Reform in New York: What Happens Next?, organized with the support of Arnold Ventures. The second part is scheduled for Sept. 23.

Register for the second part at this link.

TCR Staff writer Andrea Cipriano contributed to this report.

2 thoughts on “NY Bail Reform Called ‘Most Dramatic’ in Nation

  1. This article seems to be part of the broader trend where something that happens in New York is conflated with the rest of the country, including the misleading headline.

    New Mexico scrapped cash bail years ago and the consequences of that are big and small but because it’s not New York, no one cares.

    New York gets a disproportionate amount of attention. Can we, and I say this as a newspaper reporter, stop gasping every time New York does something? Or its draconian inner workings are revealed once again? Other states do it better. How about we start writing more stories, and picking up more stories, about places outside the two coasts where things are different? Or better?

  2. The merits of “bail reform,” generally, and the efficacy of the featured exemplar, The Bail Elimination Act in New York State (which became law in January 2020, but did not become fully operational in its present form until after being substantially amended this spring), whether a socially desirable reform development or not, cannot be credibly debated without devolving into an ideological drivel contest… i.e., unless and until we clear up some glaring falsehoods and misconceptions reported from the webinar organized by John Jay College’s Center on Media, Crime and Justice, the publisher of The Crime Report (and by extension thereof, the publisher of this rather incomplete article.

    FIRST on our plate is the misconception of the presumption of innocence that was unqualifiedly interjected into the pro-bail reform agenda by one Mr. Khalil Cumberbatch, a webinar panelist, and a former incarceree who is now a research fellow at the Council on Criminal Justice (whatever and wherever that is, this article didn’t say).

    The interjection of the “presumption” of innocence into the bail reform question is both premature and misplaced. Moreover, in the context presented, its interjection strains credulity in the practical administration of law enforcement as a constitutionally-recognized legal institution within the framework of the American system of law and justice.

    The presumption of innocence (for present purposes) is a legal right of the accused IN A CRIMINAL TRIAL; i.e., a right that establishes a procedural order for the presentation of evidence, and the evidentiary burdens of production and persuasion associated therewith. Although the “presumption” is ensconced in both statutory and case law as a constitutionally affirmed DUE PROCESS REQUIREMENT, i.e., a fundamental tenet of criminal law, after the government has presented enough evidence to constitute PROBABLE CAUSE to believe that the defendant has committed a crime, the accused need not be treated as if he or she was innocent of a crime, and the defendant may be jailed (sometimes without bail and throughout their trial) with the approval of the court (more on that below).

    Bear in mind, however, the bail system is also CONSTITUTIONALLY PRESUMED within the Eight Amendment as a compliance device for assuring the integrity of the administration of law enforcement as a legal institution, while simultaneously balancing the interests of liberty. The only Eighth Amendment limitation is disallowing the imposition of EXCESSIVE BAIL. Otherwise, imposing bail requirements is constitutionally-recognized by the courts via stare decisis. Moreover, governments have the judicially-recognized right to detain a defendant without bail throughout their trial for a serious crime in which the accused has been duly (i.e., procedurally) established to be a flight risk, or they otherwise are duly established as posing an unacceptable risk of danger to the public.

    More technically, this legal presumption of innocence is, of course, ultimately REBUTTABLE; i.e., it can be vitiated by proof of every element of the alleged crime, by the prosecution, and to the trier of fact’s satisfaction that said proof leaves them with no reasonable doubt as to the culpability of the accused defendant. Thus, the “presumption” merely orders the burden of proof in the criminal judicial process (i.e., both the burden of producing the evidence to establish the elements of the crimes charged, and the burden of persuading the trier of fact that such evidence proves the defendant’s guilt beyond a reasonable doubt); thus placing said burden first on the prosecution (legal technicalities that shift this burden are beyond the scope of this commentary).

    Therefore, in order for the state to prevail upon the charges, the prosecution must collect and present enough compelling evidence to convince the trier of fact (who is duly restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained) that the accused is indeed guilty as charged. Consequently, any failure by the prosecution to meet this EVIDENTIARY BURDEN must result in an acquittal of all charges to which said failure pertains. Therefore, bear in mind that it is not at all unusual for a mixed verdict to result in convictions on some charges, and acquittals on others within the same trial, and sometimes based on the same underlying evidence.

    Although the principle of presumption of innocence is fixed in the Universal Declaration of Human Rights as adopted by the General Assembly of the United Nations on Dec. 10, 1948, and in the International Covenant on Civil and Political Rights, as adopted in 1966, in actuality (for present purposes and for matters of both jurisdiction and venue) it is a MISNOMER. According to the U.S. Supreme Court, the presumption of the innocence of a criminal defendant is best described as an ASSUMPTION of innocence that is INDULGED in the absence of contrary evidence (Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 [1978]). It is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence. Thus, in this sense, the “right” inferred from the “presumption” is actually a symbolic or theoretical guide to the equitable administration of justice, generally.

    In essence, then, Mr. Cumberbatch’s interjection of the “presumption of innocence” argument into the debate surrounding the merits of bail reform is inapposite.

    SECONDLY, we are chided with the facile admonition that the webinar was told there were no data that came close to justifying the warning that the operation of The Bail Elimination Act would result in “lawlessness across this whole state,” per one New York legislator (allegedly). In this context, the fact of a lack of data is misleading, and its putative inference is cast in a false light. How could a RANDOM, REPRESENTATIVE SAMPLE of data (upon which dispositive conclusions could be drawn one way or the other) have already been collected on a social experiment that was not fully operational in its present form until after it was SUBSTANTIALLY ALTERED by amendment this spring?!

    THIRDLY, no one has (at least as reported in this article) advanced a scientifically-recognized evaluative methodology that would correctly prescribe the data to be collected, its manner of capture, and the statistical tools by which the Act’s efficacy can be validly, reliably and replicably evaluated. This particular research question is best suited to the scrutiny of economists (e.g., the authors of the Brennan Center for Justice study titled, “What caused the [American] crime decline?” Before we get too deep in the weeds on this question, we might first consider the “net-net” or “quick ratio” that financial analysts use; i.e., current assets (cost savings) as a ratio of current liabilities (incarceration expenses):

    What are the costs to law enforcement, the courts and the community for every prospective no-bail releasee’s probability of failing to appear (FTA) at trial, some of the costs of which would otherwise be underwritten by bail bonding companies? Consider the following examples.

    Skip location.
    Serving warrants and returning the defaulting releasees to jail.
    Re-intake processing at jail.
    Rescheduling trial resources expended for the FTA.
    Additional room-and-board expense at more secure detention facilties (to be subtracted for every probability of every prospective no-bail defendant actually showing up at trial).
    What are the cost differentials of community reintegration v. inmate retention (i.e., food and housing support and employment services, etc.)?
    Probability of recidivism for every prospective no-bail releasee.
    Cost per crime to both law enforcement and to the victim for every offense committed while recidivating.
    Economic product of releasee’s gainful employment while out of jail v. the economic product lost from taxpayer dollars redirected toward incarceration expense (less the economic product of institutional worker employment in incarceration facilities).

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