Bail Reform Fearmongering Shouldn’t Turn New York’s Jewish Communities Against Their Allies
Between solidarity actions and political efforts, Jewish communities have a wide range of options to stop antisemitic violence without relying on a criminal legal system that harms communities of color.
This piece is a commentary, part of The Appeal’s collection of opinion and analysis on important issues and actors in the criminal legal system.
Last month, New York State Senate Majority Leader Andrea Stewart-Cousins, a Democrat, announced plans to roll back the state’s new bail reform law, which had been in effect for just 43 days. The announcement was the culmination of a bipartisan fearmongering campaign led by President Trump, New York Republicans, conservative Democrats, police, prosecutors, New York City Mayor Bill de Blasio, New York’s Democratic Attorney General Letitia James, and a range of media outlets.
The immediate backlash to bail reform, one of a number of progressive reforms passed since Democrats took full control of Albany in 2018, has many causes. But one is tied to a recent series of antisemitic attacks on Orthodox Jews in New York City and its suburbs. Opponents of bail reform are exploiting the justifiable fear of local Jewish communities to ensure that police, prosecutors, and courts do not lose the power to jail legally innocent New Yorkers near-indefinitely.
In reality, despite these much-publicized incidents, New York City is the safest it has been since the 1950s and remains one of the safest cities in America. Research has consistently shown that decarceration keeps American communities safe. Moreover, capitulating to pressure from opponents of criminal justice reform would undermine solidarity with communities of color and concretely harm other longtime allies.
New York’s law eliminates cash bail for nearly all misdemeanors and nonviolent felony offenses and instructs judges to consider the least restrictive conditions to ensure a defendant’s return to court. It is fundamentally a compromise because it does not completely eliminate cash bail. But it also does not give judges unnecessary discretion to detain defendants, nor does it implement flawed pretrial risk assessment algorithms. The Center for Court Innovation estimates that if the bail reform law is properly implemented, it will reduce New York City’s pretrial detainee population by over 40 percent and allow legally innocent people to remain free in 20,000 cases in the city in 2020.
Before the new law even went into effect, however, it faced an intense campaign of resistance, much of which cited antisemitic hate crimes as justification. After a man was arrested in connection with a machete attack at a rabbi’s holiday party in Monsey in December, Rockland County Sheriff Louis Falco seized the opportunity to call for a reversal of the bail reform law. (A judge set the alleged attacker’s bail at $5 million, and the new law would not have changed that fact; judges can still set bail for individuals charged with attempted murder.)
Most of the fearmongering has focused on Tiffany Harris, a Brooklyn woman with documented mental illness who allegedly made antisemitic statements and slapped several Jewish New Yorkers in December. Nevertheless, two victims have since made public statements indicating that they believe Harris should be provided with treatment, not incarceration. If the new bail law were not in effect, Harris would be confined on Rikers Island, where she would receive inadequate or no treatment. Last week, Harris appeared in federal court, where a judge released her without bail despite federal prosecutors’ objections.
Some Jewish publications were quick to join the bandwagon. Tablet published a screed incorporating the antisemitic machete attack and Harris’s alleged assaults in an effort to smear the new bail law and other criminal justice reforms as “evil” and “insanity.” On Jan. 7, a headline in The Forward read, “Hasidic Jews: New ‘no bail’ law is emboldening anti-Semites as hate crime rises.” These arguments paralleled de Blasio’s repeated efforts to advocate against the new bail law, which he never fully supported.
The Trump administration has also contributed to the backlash. The president himself tweeted a criticism of the new law in November, and federal prosecutors are pursuing hate crime charges against Harris. U.S. Attorney General William Barr promised that federal intervention “would not be an isolated case,” and U.S. Attorney Richard Donoghue specifically criticized bail reform after Harris was rearrested. Senator Tom Cotton, a Republican, also seized the opportunity to use Jewish suffering to denounce bail reform. (Cotton’s own state, Arkansas, is the sixth most reliant on incarceration and also one of the five most dangerous states, which counters pro-carceral arguments.)
Many left-leaning Jews, reform advocates, and Harris’s defense counsel have protested the involvement of federal authorities. “Barr’s exploitation of the very real and incredibly distressing local manifestation of the antisemitism Trump has mainstreamed is yet another example of how this administration cynically uses the Jewish community as a pawn for political gain,” Leo Ferguson, an organizer with Jews for Racial and Economic Justice, said in a statement.
The proposed legislative rollback came about two weeks after federal prosecutors entered the bail reform debate. More than 100 community and advocacy organizations, including the NAACP and Black Lives Matter of Greater New York, sent a letter to Governor Andrew Cuomo protesting the addition of a “dangerousness” standard. (Depending on the specific language of forthcoming legislation, a dangerousness standard may allow judges to detain defendants pretrial based on their own discretion.)
In an email, Lisa Schreibersdorf, the executive director of public defender organization Brooklyn Defender Services, called the proposed rollback an “unacceptable shift.” She noted that the proposed change “actually makes the pre-trial incarceration structure worse than it was before … By expecting judges to predict if someone is ‘dangerous,’ and then remand them with no way to be released, the proposed changes would increase incarceration and entrench racial disparities.” Schreibersdorf also condemned the scapegoating of Harris in testimony before the New York City Council on Feb. 10. “As a Jewish person myself, I find it troubling that an oppressed people would contribute to the oppression of another people,” she said. “In this country, black people are oppressed by mass incarceration after a long history of enslavement and violent disempowerment, using language that is strikingly similar to what we are hearing at this time about ‘dangerous’ people.”
In theory, cash bail is meant to ensure a defendant’s return to court, not to keep them incarcerated before their trial. New York is unique among states in that its statutes have never permitted judges to consider public safety when setting bail. Judges may only consider “flight risk,” or the risk that a defendant will fail to appear in court. They have limited information when determining that risk, and typically set bail amounts based on a defendant’s arrest record and history of prior court appearances, which perpetuates racial and economic disparities in pretrial detention.
In reality, most defendants show up to court when released after their arrest, and noncoercive solutions like text message reminders and well-designed summons forms keep “failure to appear” rates negligible. When defendants do miss a court date, it’s most often because of work or childcare conflicts, lack of transportation, or simply forgetting—all of which disproportionately affect low-income and nonblack defendants.
Cash bail perpetuates a two-tiered system: the rich simply pay their way out of jail, while the poor suffer for an average of 26 days before getting their day in court. Nationwide, almost half a million people are detained pretrial on any given day, the vast majority simply because they can’t afford to pay bail, and over 80 percent of defendants charged with felonies can’t afford to pay for a lawyer.
All available evidence suggests that bail reform is consistent with steady or even improved public safety outcomes. In the District of Columbia, where cash bail was abolished in 1992 and 94 percent of defendants are released before trial, less than 2 percent of those released before trial were arrested for a violent crime. New Jersey abolished cash bail in 2017 and replaced it with a (problematic) pretrial risk assessment framework, slashing pretrial detention populations by almost 44 percent and reducing the average time before a trial by 40 percent. No crime spike has materialized in New Jersey, nor in Philadelphia, where District Attorney Larry Krasner implemented partial bail reform in 2018. Additionally, the Kings County district attorney’s office in Brooklyn began phasing out cash bail for most misdemeanor cases in 2017, and the office announced historic crime declines for 2019.
In short, reducing pretrial detention keeps Americans safe and mitigates the damage inflicted upon marginalized communities by the criminal legal system.
Jewish communities are justified in fearing antisemitic violence and demanding safety. Unfortunately, policing and prisons are not designed to protect Jews. Even if Jews have never been the main targets of the NYPD, we have deeper historical and ethical reasons to oppose the state violence of the criminal justice system—and even if police are now being asked to defend Jews from violence, there is no reason to believe they are particularly good at it. The NYPD’s clearance rate (the rate at which a reported crime is “cleared” with an arrest) for hate crimes is a dismal 31 percent, and an arrest doesn’t indicate that the arrested person is actually guilty of the hate crime they were arrested for.
Jewish communities have better options to protect ourselves from antisemitism. Research suggests that large-scale political projects to uplift marginalized communities, focusing on healthcare, housing, and employment, all have positive effects on public safety. Progressives, including Democratic presidential candidate Bernie Sanders, have called for an end to the use of cash bail and the creation of a “civilian corps” of first responders who defuse conflicts and direct people in crisis to services. Last year, New York City’s public advocate, Jumaane Williams, proposed a similar non-police mental health crisis response system.
On a more local or personal scale, Jewish communities can take steps to increase community members’ experience and comfort with defusing interpersonal conflicts. The NYC Against Hate coalition organizes bystander intervention training sessions to help New Yorkers keep an eye out for one another, and it has published in-depth educational materials about antisemitism to distribute to allied communities. The coalition has also released a detailed policy framework that local politicians can adopt to reduce hate violence without relying on police, including rapid incident response, community organization-centered data and reporting, community education, and restorative justice programs. With sufficient public funding, this framework could extend to wherever it’s needed most.
Between local solidarity actions and broader political efforts, Jewish communities have no shortage of sustainable and ethical options to stop antisemitic violence without relying on policing and incarceration. Even a cursory examination of available research reveals that bail reform keeps communities safe and mitigates the harm of pretrial detention. Now is the wrong time to allow criminal justice reform opponents to undermine evidence-based policy.
Jonathan Ben-Menachem writes about politics and culture, focusing on policing, austerity, and the criminalization of poverty.