New York Democrats Are Caving On Bail

“Under pressure from law enforcement, state lawmakers say they are now willing to make significant changes to the bail reform laws that have been in effect for less than two months,” Christopher Robbins wrote for Gothamist yesterday. “Currently, judges are prevented from setting bail on almost all misdemeanors and non-violent felonies, but violent crimes and some lower level charges that involve domestic violence are still bail eligible. Judges are required to only consider a defendant’s risk of not returning to court, not their past criminal record. The proposed changes would erase cash bail from the system, but would instead allow judges to indefinitely jail suspects charged with felonies and some misdemeanors before trial based on their prior criminal records or their risk of not returning to court.”

“We believe that this gets to the heart of the issues and that it is still progressive,” Senate Majority Leader Andrea Stewart-Cousins told Newsday, when she announced the proposed changes.

Stewart-Cousins’s proposals contradict the “recommendations of the New York State Justice Task Force, a group of judges, district attorneys, and police commanders tapped to advise state lawmakers while they were crafting the reforms,” Robbins writes. “The task force explicitly told lawmakers to leave the dangerousness standard out of the law that eventually passed.”

Tina Luongo, the attorney-in-charge at the Legal Aid Society, said the proposal was “a cave to fearmongering of law enforcement and DAs.” It would also be “a response to criticism from judges, prosecutors and police that the current bail law — which is just six weeks old — had taken away their power and discretion to detain dangerous suspects,” writes Yancey Roy for Newsday.

“Judicial discretion — meaning the harsh and improvident exercise of judicial discretion — is what led to the crying need for bail reform in the first place,” Law professor Steve Zeidman, who directs the CUNY Law Criminal Defense Clinic, told Gothamist. “The notion that reforming bail reform means giving judges greater discretion would be funny if it weren’t so tragic.”

Criminal defense attorney Ron Kuby recently noted in a Daily News Op-Ed, “Judges afraid of winding up on the front pages like “Turn ‘Em Loose Bruce” would lock people up before trial if they had a hunch that they might re-offend. And most of New York City just went along with it.” He added, “The bail reform laws enacted last year eliminated judicial discretion for many cases in order to prevent exactly these types of injustices from recurring. Judges proved, over decades, that they could not be trusted.”

Anxiety about judicial discretion was one of the main reasons for progressive opposition to California’s attempt to overhaul its bail system in 2018.

Over the past 40 years, give or take, the American criminal system has experimented with granting judges more discretion and constraining them, in efforts to curb excesses and discrimination. The results have consistently yielded more excesses and discrimination. Mandatory minimum sentences have been on the books in various states since the 1950s and Congress adopted the Federal Sentencing Guidelines and many mandatory minimums under the Sentencing Reform Act of 1984. These were a direct response to sentencing disparities and came with lofty goals, like increasing consistency, fairness, accountability, and transparency. And they did initially succeed in reducing some sentencing disparities among judges, but were soon rightly criticized for rigidity, excess, and for taking power away from judges and bestowing it on prosecutors.

Almost two decades later, in the case United States v. Booker, the Supreme Court made the guidelines advisory, although mandatory minimums remain mandatory. But Harvard Law School Professor Crystal Yang conducted an analysis of people sentenced between 1994 and 2009 and concluded that racial disparities increased significantly after the Booker decision. Black defendants were “more likely to be sentenced above the Guidelines recommended range, and less likely to be sentenced below the Guidelines recommended range, compared to similar white offenders.”

In the latest effort to rid the system of bias and decrease judicial discretion, many states and the federal government are turning to predictive algorithms and risk assessment tools to help determine pretrial detention decisions and sentences, an endeavor that critics warn could also exacerbate and enshrine racial disparities.

“Nearly every state in America has turned to this new sort of governance algorithm, according to the Electronic Privacy Information Center, a nonprofit dedicated to digital rights,” Cade Metz and Adam Satariano reported for the New York Times recently. “As the practice spreads into new places and new parts of government, United Nations investigators, civil rights lawyers, labor unions, and community organizers have been pushing back.” They worry that biases, including the race and class of the people who create the algorithms, are being baked into these systems, as ProPublica has reported. Critics note that Black and Latinx defendants have been found to be more likely to be flagged as “high risk” than white people because the tools rely on factors that are shaped by racial disparities in policing, like arrest history or ZIP code. But activists are often kept in the dark about those inputs because some algorithm-makers will not disclose their formulas.

“In San Jose, California, where an algorithm is used during arraignment hearings, an organization called Silicon Valley De-Bug interviews the family of each defendant, takes this personal information to each hearing and shares it with defenders as a kind of counterbalance to algorithms,” Metz and Satariano write.

Nyssa Taylor, criminal justice policy counsel with the ACLU-Pennsylvania, told the Times that she is concerned that algorithms will exacerbate rather than reduce racial bias. Even if the algorithms are not kept secret, the math is sometimes too complex for most people. “All machine-learning algorithms are black boxes, but the human brain is also a black box,” countered Richard Berk, the University of Pennsylvania professor who has designed various algorithms used by the local criminal system. “If a judge decides they are going to put you away for 20 years, that is a black box.”

Ethan Corey recently reported for The Appeal that a comprehensive report documenting the use of risk assessment tools “shows little evidence that the tools are leading to reductions in pretrial incarceration rates or eliminating racial disparities in pretrial release decisions.” Two organizations, Media Mobilizing Project and MediaJustice, put out the database Mapping Pretrial Injustice, accompanied by a report documenting in-depth interviews with officials, which revealed that although use of risk assessment tools is widespread, few jurisdictions are monitoring whether the tools serve their intended goals.

In a surprising reversal, the Pretrial Justice Institute, an organization that advocates for pretrial reforms, announced last week that it no longer supported the use of risk assessments. “We now see that pretrial risk assessment tools, designed to predict an individual’s appearance in court without a new arrest, can no longer be a part of our solution for building equitable pretrial justice systems,” the group wrote in a statement. “Regardless of their science, brand, or age, these tools are derived from data reflecting structural racism and institutional inequity that impact our court and law enforcement policies and practices. Use of that data then deepens the inequity.”