Special Section/ The Money Bail Maelstrom

Bail reform is sweeping the nation. A new bail law went into effect on January 1 in New York. It will eliminate pretrial detention and cash bail as an option in an estimated 90 percent of arrests. It joins its neighbor New Jersey, which overhauled its bail system in 2017, and enjoys success in its reform. A recent analysis of the latter, according to the independent law and policy organization Brennan Center, found a significant reduction in crime rates and overall arrests, as well as a much lower rate of pretrial detention.

On the West coast, bail reform hit a bump in 2018. SB 10, which was designed to replace the state's cash bail system with risk assessments, would have gone into effect in 2019, but it was contested by bail bondsmen, among others. It has been replaced by a Risk Assessments Referendum that is on the ballot as a veto referendum on November 3, 2020.

The shiny Big Apple law is facing backlash and bruising just weeks after it went into effect. Prosecutors and police chiefs are demanding rollbacks as a public opinion survey shows that support for bail reform is falling, according to The New York Times. “Support for the new law eliminating cash bail for most misdemeanor and some non-violent felony crimes has plummeted, and now 49 percent of New York State voters say the new policy is “bad” for New York compared to

37 percent who say it’s “good,” a Sienna College poll released Jan. 21 reveals,” according to the New York Post. “That’s a stark turnaround from last April, when 55 percent of residents backed the law while only 38 percent were opposed,” the survey found.

Advocates have long stated the bail system is unfair to people of color and those who don’t have the resources to post even a few thousand dollars to get them out of jail. They have been reported to languish for months or even years prior to being convicted of any crime. Many supporters point to the case of Kalief Browder, who killed himself after spending three years on Rikers on $3,000 bail over a stolen backpack.

But a recent spate of hate crimes against New York’s Jewish community—which included a repeat offender who attacked again after being released without bail—has ignited opposition to bail reform as revolving door justice.

Critics also point to an accused, six-time bank robber who’s become the face of all that’s wrong with New York’s new bailreform law, according to the Jan. 17 edition of the Post. As a nonviolent defendant under New York law—Gerod Woodberry allegedly used notes, not a weapon, to demand cash from tellers in Brooklyn and Manhattan—and state judges are barred from setting any bail for him under the new reforms. (He is now being held until Jan 31 when a federal judge will set bail.) Largely untold however “are the stories of thousands of New Yorkers who have been released without incident, and allowed to return to their families, jobs and communities while charges against them are pending,” according to Emily Bazelon and Insha Rahman in a opinion piece in The New York Times on Jan 24. (Co-author Rahman is the director of strategy and new initiatives at the Vera Institute of Justice.) The article asserts that the N.Y. law “is unusual, compared with those in some other states, and that’s one reason it’s politically vulnerable.”

Judges still have the authority in all cases to impose conditions like oversight by a case manager, referrals to treatment or counseling, and in some cases, electronic monitoring, the authors point out. For example, take the case of Tiffany Harris, who was arrested and charged with slapping three Orthodox Jewish women on the street in Brooklyn, released without bail, and then rearrested for hitting someone else. A judge could have ordered mental health counseling after the first incident that might have helped her instead of just letting her go.

Judges can also still set bail on almost all violent felony offenses, any case involving sexual abuse or misconduct, all felony and some misdemeanor domestic violence offenses, and witness intimidation and tampering cases. The most common charges for which release must now be allowed are drug possession, theft and unlicensed driving.

Further, for all other crimes, the reform acts like a “one strike and you are out” policy, notes a post by Marc R. Pallozzi, Esq. of the law firm Ianniello Anderson, P.C. of upstate New York and Florida. If a defendant is charged with a nonqualifying offense, and released without bail, they can have a cash bail set in these instances: persistently and willfully failing to appear in their case; violating an order of protection; or getting charged with any felony while they have a felony pending.

On the other side of the equation, U.S. Bail Reform LLC, an independently operated web site, argues that bail reform costs the government money. “Washington D.C. is consistently touted as the gold standard in pretrial services programs. In fact, the D.C. model operates without monetary bail. The cost of this gold standard pretrial program…$68 million. The number of defendants managed by this program…12,000. That equates to a cost of $5,666 per defendant,” says www.usbailreform.com, which is operated by a commercial bondsman.

Other states have done costs analysis of potential costs to implement the no-money bail system, the site continues. For example, it says: “Bail Reform in New Jersey is estimated at over $500 million and bail reform in New York is estimated at over $200 million (both estimates by a Towson State University Report).” On the side of reform, the Times asserts the best evidence for no cash bail success comes from Brooklyn. Prosecutors there stopped demanding bail for almost all misdemeanors in April 2017. Over the next year, the number of people held on bail in Brooklyn declined by 43 percent, and it has also experienced a decline in crime, with fewer shootings and the lowest number of murders in the borough’s history in 2019. Despite positive results in N.Y., the Times continues, “bail reform is in political trouble mainly because the state is the only one in the country that bars a judge who is deciding if bail is warranted from considering whether a person poses a threat to public safety. For decades, New York judges have been allowed to consider only the likelihood that the defendant will appear for future court dates (though it is likely that at least some judges factor in public safety in their calculus).”

As with any new policy, there remains room for debate and improvement, not retracting it all. “If New York decides to tweak its law,” point out Rahman and Bazelon, “It should do so based on months, not weeks, of data. Any amendments should safeguard the principle that the state cannot have two systems of justice, one for the rich and one for the poor.” ✪