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New York sheriffs are fighting the state’s cuts to pretrial detention. But bail reform can push sheriffs to embrace shrinking jails.

This is the fourth edition of The Badge, an ongoing Appeal: Political Report series on the role of sheriffs. This installment looks at sheriffs’ powers over pretrial detention. 

As of Jan. 1, New York ended the use of cash bail for people accused of most misdemeanors and some felonies — things like drug possession, simple assaults, and burglaries. The reform helps ensure that people who have not yet been convicted of a crime are not forced to wait in jail for their day in court. It is part of a nationwide movement to reduce the often-lengthy detention of people who cannot afford to post bail.

But in upstate New York, sheriffs have emerged as a powerful voice against the state’s bail reform. Last year, when he was first vice chair of the New York State Sheriffs’ Association’s executive committee, Niagara County Sheriff James Voutour said that the “handcuffs are being removed from the criminals and placed on the hands” of law enforcement; Voutour retired in December.

Sheriffs could instead champion such reform to help people stay in their communities, and stop people from remaining incarcerated because they are too poor to pay. Indeed, some sheriffs elsewhere in the country have supported bail reform and have even used the powers of their office to reduce pretrial detention and help shrink jails. 

New York sheriffs’ unspoken fear, though, may be that they will be put out of business. 

Most people held in local jails – 66 percent in New York state as of December 2019, just before the new rules came into effect – are there pretrial, meaning they have not yet been convicted of a crime. Reducing pretrial detention will thus substantially shrink jail populations, possibly leading many jails to become largely unnecessary.

New York jails, which in upstate New York, as in much of the country, are run by elected county sheriffs, are expected to see their populations drop by around 40 percent under the state’s new pretrial detention rules, according to the Vera Institute of Justice

Figures reported this week show that counties’ jail population has dropped significantly since December, down 31 percent in Dutchess County, 28 percent in Westchester County, and 21 percent in Orange County, for instance. In Steuben County, which began implementing these rules months ago, the jail population is down 43 percent compared to last year. 

But many New York jails were already seeing a drop in population as a result of prior reforms and other factors. This latest decline is only accelerating decarceral trends that New York sheriffs have long seen coming, but which they are still largely unwilling to embrace so as to avoid changing their approach and views of a jail’s necessity.

New York’s sheriffs argue that bail reform will “jeopardize public safety,” as Albany County Sheriff Craig Apple put it in a press conference. But it was already true that people charged with the offenses covered by the new law would be released pretrial — if they could pay the money bail amount set by a court, that is. The state already conducted no assessment of people’s dangerousness. The new reform leveled the playing field so that pretrial release is not limited to those with money.

Many sheriffs also argue that jail serves a public good. New York sheriffs such as Apple have said that even short pretrial stays can force people to stop using drugs, and they defend pretrial detention as a way of providing people medical and social services.

But jail stays likely do more harm than good. Studies show that detention, even for a short period, is criminogenic and cuts people off from their social support system, and that forcing people into involuntary treatment is hazardous. Jails are harmful for people’s health and lives. They are also dangerous, as shown by the continued string of deaths and suicides throughout the country, including in New York. 

A report released by the New York State Commission of Correction in 2018 assailed the detention conditions in jails run by sheriffs in Dutchess, Erie, Greene, and Onondaga counties. These “pose an ongoing risk to the health and safety of staff and inmates and, in instances, impose cruel and inhumane treatment of inmates in violation of their Constitutional rights,” says the report. In Erie County, at least 30 people have died since Sheriff Tim Howard took office in 2005. 

Lawmakers, relying on the words of law enforcement, traditionally didn’t question the utility of locking people up. But the significant human and financial costs of pretrial detention, and the failures of the war on drugs, have led many politicians and voters to reject the idea that more jails, and full jails, produce healthy communities.

Bail reform challenges the widely-held premise that jails, and by extension sheriffs, are necessary to resolve social problems such as poverty and drug addiction. 

Yet sheriffs, especially rural ones, have long benefited from the expansion of a public industry that warehouses people for weeks or months pending trial. The New York sheriffs most vocal against bail reform are those who run jails in relatively rural counties. 

In rural counties, jail construction is incentivized by federal programs that fund it as rural revitalization, and the pretrial population of rural jails has exploded

And their sheriffs have applauded building bigger and bigger jails, expanding detention capacity even as crime has gone down and pretrial diversion and bail reform have expanded. Clatsop County, Oregon, implemented new pretrial release policies to alleviate jail overcrowding, but despite the success of the program, then-Sheriff Tom Bergin worked for the construction of a new jail that more than doubles Clatsop’s detention capacity. 

There are sheriffs, though, who are embracing the advantages of emptying their jail of its pretrial population. And they are getting creative. The next frontier is a repurposing of the jail space and of the sheriff’s office itself. 

Some have championed bail reform and are reconsidering the role of jail in their communities. In Harris County, Texas (Houston), Sheriff Ed Gonzalez has spoken up in favor of a significant bail reform that the courts have imposed on the county, unlike the county’s chief prosecutor. “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately Black and Hispanic, that’s not a rational system,” he said in 2017.

Gonzalez is also implementing reforms to reduce the jail population through policies of pre-arrest diversion and cite-and-release, which prevents people from entering the jail in the first place. Elsewhere, other sheriffs are helping connect people in the community with social services as a way to avoid arrests altogether.

Once people are arrested, sheriffs everywhere play a decisive role in how quickly they will be released. When they delay processing people’s appearance at a bail hearing, or their release even after they post bond, they extend people’s jail stays with potentially devastating consequences for their employment or family situations.

And some states, such as Georgia, even grant sheriffs statutory power to release people pretrial. Faced with jail overcrowding, the sheriff’s office of Muscogee County has been releasing a small number of people on their own recognizance, without needing to post bail. 

Elsewhere, some sheriffs are helping set up technological tools like text-message reminders for court dates, which are shown to be effective mechanisms to ensure people aren’t detained pretrial — without hurting court attendance. 

And, although it’s not something any sitting sheriff has really advocated for, sheriffs might be able to envision the closure of jails, especially as pretrial detention declines. James Herndon, a Democrat who is running for sheriff this year in Cobb County, Georgia, told The Badge this week that he is campaigning on a platform of opposing new jail construction.

Instead of resisting bail reform and fighting to preserve pretrial detention, New York sheriffs could explore these avenues for reform. They would be leading their communities toward a future that understands that a healthy community may make their jobs less relevant.