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Massachusetts and New York Prosecutors’ Bail ‘Reforms’ Permit Business as Usual

Middlesex DA Marian Ryan

Massachusetts and New York Prosecutors’ Bail ‘Reforms’ Permit Business as Usual

On January 11, Marian Ryan, the District Attorney of Middlesex County, Massachusetts, proudly announced that her office would stop requesting cash bail in “non-violent, low-level” cases. “Recognizing that even a short period of incarceration can cause tremendous upheaval in one’s life, including loss of employment and housing,” Ryan proclaimed, “this practice seeks to prevent incarceration solely due to a lack of financial resources.”

The next day, however, a man charged in Middlesex County with drug possession and larceny, both of which are presumably “non-violent” and “low-level” under DA Ryan’s definition — her office did not respond to a request to confirm — asked the Massachusetts Bail Fund to pay $500 because he could not afford his bail. But it was DA Ryan’s sweeping announcement that made the news that day, not the bail request that immediately undercut her lofty promises.

A similar scene unfolded that very same week in New York, where newly re-elected Manhattan DA Cyrus Vance announced that his office would no longer seek bail in certain misdemeanor cases. “A systemic reliance on bail for low-level offenses is out of step with a reformed, 21st-century justice system,” he told his constituents. This announcement spread across the news, with papers praising Vance and claiming his plan would “end cash bail for most low-level offenses.” In April, Brooklyn DA Eric Gonzalez made a similar pledge.

But advocates in Massachusetts and New York fear that the courtroom reality will be very different from the reforms these DAs so forcefully promise.

“I’m skeptical that the proposed reforms will benefit all New Yorkers who are harmed by the bail system,” Brooklyn Community Bail Fund Director of Operations Terrence Bogans, also a former public defender, told The Appeal. “I’ve seen these District Attorneys ‘decriminalize’ offenses such as marijuana possession and jumping the turnstile, only to continue seeing low-income people of color prosecuted and have bail set for those very charges.”

Sure enough, this past week, the Fund — which, like several similar funds run by non-profits in cities around the country, pays for poor defendants to get out of jail — reported paying nine misdemeanor bails.

In counties that use money bail, a prosecutor asks the judge to set a bail amount that a person accused but not convicted of a crime must pay to get out of jail before their trial. If that person has the money, he or she gets out. If not, he or she sits in jail.

Cash bail proponents — including, incidentally, the bail bondsmen who make a killing off of poor defendants’ failure to pay — claim this system is necessary to ensure court appearances, but studies show this is misleading. In Washington, D.C., where there is no cash bail, 90 percent of people appear for their court dates. Meanwhile, indiscriminately caging all people who face criminal charges results in lost jobs, personal instability, and decreased public safety. This system of wealth-based detention is now under assault, with attacks coming from legislatorscelebrities, and grassroots powerhouses like Color of Change and Just Leadership.

But while Ryan and Vance are latching onto the rhetoric of criminal justice reformers, their bail “reforms” permit business as usual. Prosecutors in their counties can still ask judges to set bail amounts that poor people cannot pay, as just occurred in the Middlesex courthouse as Ryan announced her new policy. The DA’s office did not respond to a request for comment on that bail request.

Vance’s policy, too, is riddled with exceptions that contradict the no-bail rule and rubber-stamp DAs punishing the unconvicted. If police arrest someone for a misdemeanor who has other misdemeanor charges pending — even as minor as possession of marijuana or drug paraphernalia — the DA can ask for cash bail. This exception has little to do with the likelihood of returning to court; Vance is simply allowing his prosecutors to ask for jail time to punish poor people with multiple arrests. In New York, where police disproportionately target people of color, this will mean poor black and brown people disproportionately caged pre-trial.

“Creating a loophole that permits the use of monetary bail simply because someone has multiple open misdemeanor cases ensures that the over-policed communities will be the least likely to benefit” from Vance’s policy, says Josh Norkin, coordinator of the Legal Aid Society’s Decarceration Project.

New York DAs can also ask for cash bail if someone charged with a misdemeanor was convicted in the past of certain felonies, like third-degree robbery, or a misdemeanor sex crime, or is on probation or parole, even if he or she has never missed a court date in the past. This too has little to do with his likelihood of returning to court, but it does ensure more people of color will remain locked up — because they have been over-policed and disproportionately saddled with criminal records. And while some of these named felonies, like third-degree robbery, may seem serious at a glance or like a threat to public safety, their labels can be misleading. Third-degree robbery is forcibly stealing property and can include crimes like taking a cell phone.

Perhaps the broadest loophole that appears in both of the new policies is the one that permits prosecutors to seek bail whenever they believe they could, after conviction, obtain more than a 30-day sentence in New York, or any jail sentence in Middlesex. But at such an early stage of the case, when the defendant seeks release pending trial, prosecutors have done little investigation into the case’s facts, the defendant’s prior record, or mitigating evidence. Any sentence within the maximum range is possible, and even the smallest case, like turnstile jumping, will allow for more than a 30-day sentence.

Ryan has otherwise provided few guidelines to attorneys, stating only that prosecutors should not request bail for “low-level, non-violent” offenses. These terms have no legal meaning; their definitions appear nowhere in the state statute. If a person is found with a knife in his or her pocket or grabs a cell phone from someone’s hand, is it a violent offense? Atara Rich-Shea, the Massachusetts Bail Fund’s director of operations and a former public defender, believes Ryan has kept the policy vague to allow prosecutors to continue along as before. “[DAs know] the definition of ‘nonviolent’ or ‘low level’ is a murky one,” she says, “that they can make up as they go along.”

Critically, neither Ryan nor Vance nor Gonzalez has publicly announced oversight mechanisms to ensure that line prosecutors follow the new policies. None of them has publicly promised to track prosecutors’ bail requests or provide data to the public. It will be up to those in the courtroom — defense attorneys or bail fund representatives — to alert the public when District Attorneys deviate from their plans.

Experiences described by advocates in Brooklyn show how easy it is for prosecutors to seek cash bail. Bogans from the Brooklyn Community Bail Fund reports that the fund regularly posts bail in misdemeanors where people are too poor to pay. Since April, Bogans told The Appeal, when Brooklyn DA Gonzalez announced his reforms, “our cases aren’t down, we haven’t changed our procedures, and we are still paying the same amount of bail every day.”

But the biggest flaw with the DAs’ policies is the premise that cash bail is necessary at all. Notwithstanding their sweeping pronouncements about the harm of wealth-based detention, Vance, Ryan, and Gonzalez are still comfortable incarcerating people who haven’t been convicted of crimes simply because they cannot afford bail, while releasing people who can. The DAs may also be susceptible to pressure from the bail industry; Gonzalez received $7,500 in campaign contributions from one bail bond company, though he later reportedly returned the donations.

These DAs are hiding behind popular reform rhetoric, but they are miles behind the real reform work being demanded by groups like the Decarceration Project in New York and Color of Change, who advocate for the elimination of the cash bail system.

Just last week, the New York City comptroller issued a report demanding an end to commercial bail, calling it a way of “further putting poor families into poverty.” New York Governor Andrew Cuomo, hardly known as a criminal justice reformer, is pushing a bill mandating the release of nearly all those accused of misdemeanors or non-violent felonies, allowing holds only for those who pose a flight or safety risk after they receive due process. Bogans of the Brooklyn Community Bail Fund puts it succinctly: “What advocates are demanding is an end to this unjust practice.”

Perhaps these newly announced policies will lead to meaningful improvements in the bail system. But unless backed by real action and transparency from DAs like Vance, Ryan, and Gonzalez, these soaring promises of reform lure the public into a false sense that the criminal justice system is improving. Meanwhile, as always, people are caged simply because they are poor. Fortunately, there are on-the-ground advocates like Rich-Shea of the Massachusetts Bail Fund to hold prosecutors accountable. “DAs,” she says, “work for us.”

Thanks to Burke Butler.

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