In 2019, New York passed a bill eliminating both cash bail for most misdemeanors and non-violent felony offenses and judges’ discretion in setting bail amounts in those cases. The move was applauded by progressive state leaders and criminal justice reformers, who for years have accused the cash bail system of unfairly discriminating against the poor and people of color.
However, as crime rates continue to rise around the country, critics have been quick to place much of the blame on bail reform, claiming it has resulted in the release of dangerous, repeat-offenders who are rearrested again and again after continually terrorizing communities and threatening public safety.
Some experts say that the narrative is a lie.
“It is a false statement designed to scare you and to raise fear,” said Alice Fontier, Managing Director of the Neighborhood Defender Service of Harlem
“It is politics and nothing more.”
Fontier was speaking alongside other criminal justice professionals at a conference Friday on bail reform in New York, co-hosted by John Jay College of Criminal Justice and Arnold Ventures.
“About 10,000 fewer people across the state each year are held in custody pretrial post bail reform,” said Fontier.
“And 96 percent of people who were awaiting trial did not get rearrested post bail reform. So, if you are someone who opposes bail reform, I ask you to admit that what you want is for people to be incarcerated pretrial, that you are not concerned about the deaths on Rikers Island, and that you are not concerned that the people who are incarcerated are overwhelmingly Black and brown.”
In the last 17 months, 20 people have died in New York’s notorious jail facility on Rikers Island, the majority of whom were pre-trial detainees.
In New York City alone, the pre-trial jail population is 60 percent Black despite only representing roughly 24 percent of the city’s population. And as of March 14, 2022, there were 4,682 people waiting for their trials in New York City jails. Of them, 2,206 had been waiting for six months or more, and 1,474 had been waiting more than a year.
Meanwhile, according to the U.S. Commission on Civil Rights, 60 percent of defendants nationwide wind up in jail awaiting trial because they can’t afford to post bail.
‘Discrimination Against the Poor’
“By definition, bail discriminates against the poor,” said Michael Gianaris, New York State Senate Deputy Majority Leader.
“You’re asking people to pay for their freedom and young poor people, primarily of color, don’t have that ability.”
The primary architect of New York’s bail reform statute, Gianaris says that, in a system that promotes the idea of a person being innocent until proven guilty, the injustice in cash bail should be obvious to everyone.
“Oftentimes, especially on low level charges, these people are held at Rikers for longer than their sentences would be if they were actually convicted after trial,” said Gianaris.
“These are people who are denied their freedom before they’re convicted because they don’t have enough money to pay for [release] while they’re waiting for their day in court. That is unjust in so many ways.”
But, despite facts like these, lawmakers in New York have already narrowed the types of crime that are ineligible for cash bail and made it easier for judges to hold people in jail, even for some minor offenses such as shoplifting.
And both New York Gov. Kathy Hochul and New York City Mayor Eric Adams continue to campaign for further rollbacks of the three-year-old reforms, emphasizing that they are the key to tackling violent crime throughout the state.
Their rhetoric mirrors that of states like Florida, where Governor Ron DeSantis has loudly resisted any similar and so-called “soft on crime reforms” that he blames for both high crime rates and low officer morale, and Texas, where Gov. Greg Abbot passed a bill in 2021 to further restrict offenders from being released on bail that garnered bipartisan support, despite critics saying it discriminates against poor people.
“The tropes are about gun violence and an increase in gun violence somehow being related to bail reform, said Fontier.
“There is just nothing true about it. What we have seen is that judges are reacting to bail reform and rate increases in gun violence by setting higher bail. So, people who are arrested with a gun are held in custody on bail they cannot afford and they stay there for months or years until they take a plea or go to trial. That is what is happening.”
Critic: Bail Reform Made Things Worse
James Quinn, Former Senior Executive District Attorney at the Queens District Attorney’s Office, argues that while connecting bail reform to rising crime might be unpopular, the reality is that things only got worse when the law took effect.
“The fact of the matter is that bail reform has been a disaster for New York City,” said Quinn.
“When bail reform was passed in April, 2019, there were 7,800 people on Rikers Island. By January 1 of 2020 that population had been reduced by 2,000 people all at once. Before those people were released, crime in New York City was down 1.7 percent. Two and a half months into bail reform crime in New York City had gone up 20 percent.”
According to data released by the New York Mayor’s Office of Criminal Justice, 19.5 percent of total arrests and 20.2 percent of violent felony arrests were of suspects with open cases in 2019. New York’s bail reform went into effect the following year, and those rates jumped to 24.4 percent and 25.1 percent respectively. Violent crime in many of the city’s precincts also rose dramatically.
Across the river, New Jersey’s own similarly progressive bail reforms, which were passed in 2017, resulted in a slight increase in the percent of defendants released pending trial charged with an indictable crime in 2017, compared to 2014, when money bail was the primary mechanism for release from jail before a trial (13.7 percent in 2017 versus 12.7 percent in 2014).
There was also a rise in the percent of those charged with a disorderly persons offense after release (13.2 percent in 2017 versus 11.5 percent in 2014), and the percentage of defendants released pending trial who showed up for pretrial court appearances declined to 89.4 percent, from 92.7 percent in 2014.
“Whatever you want to say about the old system, the criminal justice system in the past brought crime down [in New York] 76 percent in 27 years, it brought down the population of Rikers Island by 60 percent during that time, and yet we’re constantly told that the criminal justice system was broken and it had to be fixed,” said Quinn.
“This is not a proper fix.”
Positions like Quinn’s, and the data that he cites, are why legislators and lawmakers in New York continue to push changes to the law, such as introducing a new “dangerousness standard” empowering judges to lock people up before their trials based on a judge’s prediction of whether they would do something dangerous to other people in the future.
“We have to have a system that allows a judge to look at a defendant, look at his record, look at the crime and determine if this individual is a danger if he’s out on the street,” said Quinn.
“If you do that, simply, it takes away all the arguments about poor people getting kept in jail and rich people getting out.”
But critics argue that this type of judicial discretion results in racial bias and large amounts of poor people being detained pretrial. And while states like New Jersey have utilized an algorithm to predict the likelihood of a defendant to commit further crimes, such programs often make things worse.
“There’s obvious problems with trying to predict when someone’s going to do something when they haven’t actually done it,” said Gianaris.
“What tends to happen is the same people who are always getting screwed by the system end up getting screwed by any type of predictive model deciding whether or not they’re going to be dangerous on the street.”
In fact, a 2016 ProPublica investigation found that a similar predictive algorithm in Broward County, Florida, “was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.”
The Peril of ‘Dangerousness’
For New York Assemblywoman Latrice Walker, one of the leading proponents of the bail reform legislation, trying to assess dangerousness will only lead New York down these same wrong roads.
“I have zero tolerance for the implementation of a dangerousness standard,” said Walker.
“These algorithms rely on a series of questions that go towards a person’s propensity towards poverty, not dangerousness. And we have to be concerned about the criminalization of poverty and, by extension, the majority black and brown people that are living in it.”
Walker also argues that, despite current complaints that judges lack the necessary discretion to stop bad people from getting out of jail and reoffending, that has never been the real issue.
“They already had discretion, but they never had discretion to say you’ll need to go to a substance abuse counselor, you’ll need to go to a housing counselor, you’ll need to have support services for housing and eviction,” said Walker.
“And so [the assembly] will be calling on the Governor to put the resources behind these judges so they can lean on the community based organizations that we know will help us in our ultimate goal of public safety.”
However, the debate over bail reform is far from over, and those pushing a return to the bail policies of 2019 as the means of obtaining that safety show no signs of slowing.
“What I’m concerned about is that the entire discussion about bail reform is not based on statistics. It’s based on anecdotes, it’s based on feelings, and it’s based on general principles,” said Quinn.
“And we have to decide what is important for the city. Is it important to keep the streets safe? Is it important to protect people? Because you can’t tell me that releasing 2000 career criminals from Rikers Island in the space of two months had no effect on the crime rate in New York City.”
Isidoro Rodriguez is deputy editor of The Crime Report
1 Comment
Calling it “cash” bail is simply incorrect and purposefully designed to make it sound dirty and evil. It also fuels the false narrative of poor versus rich. What people aren’t being told is that the majority of bail bonds are financially secured surety bonds. These surety bonds are a three party contract between the defendant, the state and the bail agent (surety), that the defendant will show for all court appearances. What bail reform does is remove that financial promise from the the release process and in turn eliminates all forms of accountability. No longer is the defendant incentivized to show up for court…no longer is the family incentivized to make sure their loved one shows up for court…and no longer is there any responsible party willing to ensure that defendant shows for court and if they don’t, goes and gets them. Instead defendants are left to disregard the courts rules and avoid their day in court. Don’t believe the lie that people show up for court. It is just not true. In Harris County Texas (Houston), they spent $100 million on bail reform and their failure to appear rates are over 75%. Think about that…only 25% of the people accused of a crime are showing up for court. How does that represent justice? See the attached study for the numbers…
http://texasbailnews.com/Downloads/Report.pdf?fbclid=IwAR2fOvMzg_Cz_gdvKba1M5LveZtYUBX7elvS3f3HLgOF48Dgi-L0bQnOIHg