Pushback On New York’s Bail Reform Reflects Fear, Ignorance

“New York Democrats have blood on their hands,” Nick Langworthy, the chairman of the state’s Republican Party, said in a news conference this week. “They rushed this dangerous, reckless law through, despite warnings from law enforcement.” Langworthy was referring to a recent attack on a rabbi’s house in Monsey, and his implication is that somehow bail reform allowed the attack to take place. It is utterly illogical to believe that the bail law had anything to do with the Monsey attack. Even under the new law, the suspect, who was charged with five counts of attempted murder and one count of first-degree burglary, could have been held in on bail. His bail in state court was set at $5 million, even before he was charged with federal hate crimes.

The new law requires defendants to be released without cash bail on most misdemeanors and many nonviolent felonies, including stalking, various drug offenses, and some kinds of arson, burglary, and robbery.

In the bail reform law’s very first week of existence, moderate and even self-proclaimed progressive Democrats have expressed a willingness to backtrack, after a spate of anti-Semitic incidents and other alleged incidents, purported to be crimes committed by those released. “Clearly there are urgent issues that need to be resolved quickly—and changes to the law should be at the top of the agenda as soon as we return to Albany,” said Senator Todd Kaminsky, a Democrat and a former federal prosecutor from Nassau County. “The public safety of our constituents should be our first priority.” This week, Democratic Governor Andrew Cuomo said the bill, which he signed in April, was a “work in progress,” adding that there were “consequences that we have to adjust for.” The state attorney general, Letitia James, also a Democrat, has suggested that the new laws be revisited but declined to say which changes she would make.

Critics point out that even though the Monsey suspect could have been detained under the new law, a Brooklyn woman who was accused of slapping three Orthodox Jewish women was automatically released. She was arrested and released under the new law, and a day later, she was rearrested after being accused of assaulting another woman.

There are many compelling counterarguments to this attack on the bail reform law. Most obviously, unless critics are suggesting that the Brooklyn woman be remanded with no possibility of bailing out, if she had access to money, she would have been able to walk just as freely under the old law as under the new one. Even accused rapist Harvey Weinstein was allowed to post bail in his case, and those critics seem untroubled by his freedom.

“Prosecutors understand the power and leverage that a broken pretrial system offers them, wielding that unfair advantage to coerce plea deals: 95% of all cases end in plea deals or dismissals, not trials,” wrote a group of public defense leaders in the Gotham Gazette. They add that “when prosecutors claim that these pretrial reforms will result in ‘criminals’ running free and skipping their court dates … it is important to remember that charitable bail funds already prove them wrong. For example, Bronx Freedom Fund found that 96% of the more than 2,500 people for whom they paid bail … attended all of their court dates; 55% of those cases were entirely dismissed.”

A coalition of 60 criminal justice reform groups sent an open letter to Cuomo and legislative leaders demanding that they not change the law. “Make no mistake,” the letter reads, “retreating from bail reform less than a week after it goes into effect because of predictable fearmongering will be a retreat from New York’s position as a leader in criminal justice reform and will embolden opponents who prefer the status quo.”

And three Jewish state lawmakers wrote an opinion piece yesterday urging leadership not to regress on criminal justice “in our name.” Even though they are “concerned about the rash of anti-Semitic attacks,” they write, “we also know that we combat anti-Semitism through education and community dialogue, not incarceration, which is why we are deeply concerned about recent attempts to use these attacks as a rationale for dismantling New York’s brand new bail reform law. While it’s important for us to untangle the truly heinous crimes from incidences of people with mental illnesses lashing out, it’s also important to ensure defendants in all of these cases are treated like human beings while they await prosecution. … None of this backsliding will address the underlying issue or make communities targeted by hate any safer. In cases where serious violence takes place, the new bail law already has been and can be applied to set bail on a suspect.” They conclude, “incarceration will not solve the problem of anti-Semitic violence.”

There are other reasons not to touch the law. “Advocates for closing Rikers and opening smaller borough-based jails are beginning to fret over the push to roll back some of the provisions of the bail law reforms that went into effect on Jan. 1, saying the contentious plan was carefully crafted using population estimates that included the impact of bail reform,” reports the Brooklyn Eagle. A source at the City Council speaker’s office said there would be no way to predict what might happen to the jail plan if bail reforms are scaled back.

“We are seeing elected officials turn back because of fearmongering,” Akeem Browder, the brother of Kalief Browder, told the New York Times. “That’s cowardice. It’s atrocious.”

Yes, a good portion of the pushback against the new law consists of cynical power grabs by law enforcement and politicians. But some of it might stem from a fundamental misunderstanding of what bail is and the purpose it is meant to serve. Perhaps because bail has a punitive effect, or perhaps because people want to trust an all-knowing system, many seem to believe that pretrial detention should be part of a punishment. Those who are not held pretrial are, to many, getting away with something. On an online community message board in this writer’s nominally progressive Brooklyn neighborhood, people expressed outrage over the new law, commenting that “crime just got legal,” and lamenting how a person can commit a crime and simply “walk away.” These beliefs are most likely the result of decades of political and cultural fearmongering, but also an ignorance about the role that bail and pretrial detention play in the overall system. Bail is simply intended to ensure a person’s return to court, not to penalize a person who has not yet been convicted of any crime.