Reducing the number of people held in pretrial detention and ensuring public safety are “not mutually exclusive,” says Jonathan Lippman, former Chief Judge for the New York Court of Appeals.
New York’s recent bail reform law is an example of how both goals can be accomplished in a way that treats “human beings with respect and dignity,” Lippman told a webinar Wednesday.
“Too often we fail to live up to this ideal in our courts as well in our society.”
Lippman was the keynote speaker at the webinar, the second in a two-part series organized by the Center on Media, Crime and Justice, publisher of The Crime Report, which examined the impact of New York’s bail reform and exploring how it has affected criminal justice during the Coronavirus pandemic.
The law, which came into effect in January, eliminates money bail for misdemeanors and most non-felony offenses. Amendments to the law last spring narrowed the list of offenses qualifying for suspension of bail, but the measure remains a cornerstone of New York’s ambitious effort to reform the state justice system.
Lippman said the law returned to judges some of the discretionary powers they lost during the “tough-on-crime” era, when stricter mandatory punishment was considered the only way to reduce crime levels.
The judge, who served as chief judge of New York’s Court of Appeals from 2009 to 2015, acknowledged that similar attitudes were resurfacing in the midst of a polarized election period—particularly in the debate about replacing the now-vacant Supreme Court seat left by Justice Ruth Bader Ginsburg, who died last week.
But he argued that America’s judicial system as well as its highest court were ”resilient.”
“I have confidence that at the highest end judges will have the discretion to make the right decisions,” said Lippman, who disagreed with proposals already circulating among some Democrats for enlarging the nine-justice court to 11 or more judges.
Similarly, Lippman remained optimistic in the face of widespread calls by some authorities for a return to “law and order” policies. Reforms to the justice system “take time for people to digest,” he argued.
Lippman, who headed the blue-ribbon commission calling for closure of the notorious Rikers Island detention facility, said he was also not alarmed by the recent judicial ruling blocking a plan to build a new jail in Manhattan as one of the satellite facilities replacing Rikers.
“I’m not going to criticize a judge,” he said, adding that he was confident that the plan to replace Rikers with smaller facilities in the city’s five boroughs would prevail.
Rikers has come in for sharp criticism for conditions of detainees—most of whom have not been convicted of anything, but are confined behind bars to await trial because they cannot afford bail.
The idea that without setting stiff bail it would be hard to guarantee that a defendant will show up for trial is belied by data collected even before the bail reform.
Over 90 percent of detainees show up for trial—and those who don’t are often prevented by illness or lack of transport, the webinar was told by other speakers.
Erie County District Attorney John Flynn said the number of individuals held on bail in his jurisdiction had already begun to decline before the 2019 bill was passed by the state legislature.
“Around the summer of 2018, I made a policy decision,” said Flynn. “I told all of my assistant district attorneys to no longer ask for bail on misdemeanors and low-level non-violent felonies unless there was a good reason.”
The number of those held in pretrial detention in Erie County declined from 1,074 in August 2018 tp 425 in January 2020—a 60 percent decrease, Flynn said.
Law enforcement leaders in some parts of the state—and in New York City—have vociferously opposed the bail law, claiming it will lead to an uptick in crime.
Craig Apple, Sheriff for Albany County, said bail reform was just an additional tool in his office’s effort to reduce recidivism rates, but he said the cautious approach exemplified by the amendments passed last spring made sense.
“We’re in the business to help people and support people, not just arrest and abandon people,” he said.
While reforming bail was necessary, Apple said it was wrong to “throw the baby out with the bathwater all in one shot.”
All the speakers noted that the COVID-19 pandemic had put special strains on the pretrial population, because of the lack of sufficient health and rehabilitative care
Wesley Caines, Chief of Staff for Bronx Defenders, which provides legal assistance in one of the nation’s poorest jurisdictions, said many of his organization’s clients had suffered because courts had shut down or sharply curtailed their activities.
“We’re concerned about flu season coming and I know that our court system is very hesitant,” added Flynn.
Albany County DA David Soares took a similar skeptical view.
He said the current bail legislation did not address some of the tougher problems of finding alternatives to punishment.
“I’m a prosecutor, but that doesn’t mean I’m always looking for jail,” Soares said. “I want to solve problems for my victims.”
Soares said he wanted to see more alternative approaches such as the ‘Clean Slate” program, launched in Albany County and several other jurisdictions, which gives qualified 18-to-24-year-olds involved with the justice system the option of receiving mentoring or addiction counseling instead of imprisonment.
But he added that the justice system needed to address the real-life needs of those who most often found themselves entangled in it.
“It’s absurd that you can order tacos at 12:30 at night using an app, but we can’t make the criminal justice system more convenient for the people who are actually consumers of the system,” he said.
Meaningful efforts to address money bail and pretrial detention are underway in many parts of the country—and have received bipartisan support, said Marc Levin, the Chief of Policy and Innovation for the Texas Public Policy Foundation and a founder of the Right on Crime initiative.
Just focusing on the nature of the offense is “not as predictive of somebody’s risk to public safety, or risk of absconding as looking at a host of other factors,” he said.
“I hope that at the end of the day, people will put aside their regional differences, and just focus on the fact that the system as it’s used across the country still relies in large measure on people’s ability to pay.”
Levin said New York’s reform efforts were part of an uphill battle across the country.
“Until we substitute [bail] for something that’s more rational, that really focuses on public safety, due process and the presumption of innocence, we’re going to continue to have both legal challenges and suboptimal results.”
DeAnna Hoskins, president of JustLeadership USA, reinforced the idea that while bail reform was a welcome improvement, there’s still a lot of work to be done in order to improve racial equity.
The money bail system not only harmed impoverished communities; “it was disproportionately impacting black and brown bodies,” she said, noting that 86 percent of individuals currently sitting in correctional facilities around the state because they couldn’t afford bail were Black and Latinx.
“We’re continuing to see black and brown people always having to fight for their freedom,” she said. “It’s only given to us in piecemeal. It never [seems to] be a whole package deal.”
See also: NY Bail Reform Called ‘Most Dramatic’ in Nation (Part one of the webinar).
For additional material on the Webinar, click here.
Emily Riley is a justice news reporting intern for The Crime Report.