Bail Reform Backlash is Keeping Poor, Innocent People Behind Bars

It’s no secret that we have two justice systems in this country — one for the wealthy and powerful, and the other for everyone else. Nothing epitomizes that duality more than cash bail.

Imagine you have been accused of a minor crime like petty theft. You might be completely innocent, or otherwise pose no threat to anyone, and still end up spending months or even years behind bars before going to trial. All because you can’t afford to put up a few hundred or thousand dollars demanded by the court.

It happened to Kalief Browder. The then-16-year-old boy was arrested in May 2010 and accused of stealing a man’s backpack with his friend. The judge ordered him held in jail unless he could put up $3,000 in bail. His family couldn’t pay.

The boy ultimately spent three years in New York’s notorious Rikers Island awaiting trial. Prosecutors tried multiple times to persuade him to plead guilty, and he refused. He was released after they eventually dropped the case.

Browder’s experience in jail was harrowing. He was placed in solitary confinement for nearly 17 months straight, stuck for 23 or 24 hours per day in a box barely larger than a bathroom. During that time, when he was being escorted to the showers and handcuffed behind his back, a guard threw him to the ground, causing him to suffer severe facial injuries. Other inmates at Rikers also assaulted him. Complaints about these incidents only got him more time in solitary.

The trauma of incarceration, especially unjust incarceration under such brutal conditions, sank deeply into Browder’s psyche. He attempted suicide multiple times, starting when he was in solitary and created nooses out of bedsheets. Sadly, two years after his release, he tried again to kill himself and was successful.

Contrast that situation with wealthier individuals accused of crimes. Disgraced Hollywood mogul Harvey Weinstein was allowed to  emain free on bail — which started at $1 million was later upped to $2 million after he tampered with his ankle monitor — while awaiting trial on rape and sexual assault charges. The difference was, of course, that he could afford to pay.

Racial disparities are also a facet of the two-tiered system. Weinstein is white. Meanwhile, according to academics, nearly 90 percent of the people held pre-trial in Rikers are Black or Latinx.

Bail isn’t supposed to exist to punish criminals. It is merely meant to be a tool that ensures defendants will appear in court, and is usually returned to defendants after a trial, minus a processing fee. Cash bail is not actually required, however. If a defendant poses no threat to the community and no risk of flight, a court can release him or her on a “personal recognizance bond,” or on the basis of a promise to appear without having to put up money.

Browder’s terrible story galvanized an effort to reform the bail system in New York. Early in 2020, a state law took effect that ended cash bail for most non-violent offenses, including petty theft accusations such as stealing a backpack. But the law faced attacks almost as soon as it was passed by tough-on-crime lobbyists, prosecutors, and politicians.

The New York Police Department pushed stories in the media tying an alleged “spike” in crime to the reforms, even while a closer look at the statistics told a different tale. A project by law professors called the Mass Bail Out Action in 2018 provided bail money and secured the release of 500 teenaged girls on Rikers Island awaiting trial. Prosecutors opposed the effort, and claimed letting them go free before trial would constitute a threat to “public safety.” No significant safety occurred.

Similarly, the Vera Institute of Justice conducted research in 2017, tracking more than 50 people released pretrial without paying bail, and found that only two were arrested on a new violent felony charge within the next year.

Though, the tough-on-crime people still fought back, and have been slowly chipping away at the hard-won reforms. In July, changes to the law went into effect that reinstated bail for about 25 types of alleged offenses, including certain kinds of burglary and drug crimes. In some cases, prosecutors have also worked to undermine the bail reform changes, by classifying charges differently or arguing an individual is a flight risk when such circumstances are unlikely.

As a result of these changes, the once-declining NYC jail population is now inching back up. Newly-released data from November show that more than 4,700 people, most of whom have been accused of a crime but not convicted, were sitting in the city’s jails. That’s up nearly 25 percent from the total at the end of April.

Although the number is still far below the nearly 7,000 people languishing in jail at the end of 2019, it shows that our progress on bail reform is slipping. All the more concerning, our jails are filling back up as the coronavirus pandemic continues to pose serious threats to inmates’ healthy living in close confines of these facilities. 

Early this month, the Legal Aid Society of New York discovered that the number of people in Rikers who had either contracted COVID-19 or were exposed to it surged by 700 percent in the weeks leading up to Thanksgiving.

Indeed, innocent people unable to afford bail not only might have to endure undeserved jail time, but they could also end up with a death sentence from coronavirus.

So, what is the state of play now?

Fortunately, for most nonviolent criminal charges, the reforms remain in effect, and a defendant should not be asked to fork over cash bail while awaiting trial. That means, in most cases, you should be allowed to return home after being arraigned in court. Exceptions include sex trafficking, strangulation, grand larceny, aggravated vehicular assault, and endangering a child’s welfare.

Judges can impose certain conditions on defendants, such as requiring them to refrain from contacting victims or witnesses of alleged crimes, or surrendering their passports. Although public safety advocates have demanded that judges be allowed to consider a vague factor of “dangerousness” in deciding whether not to grant pre-trial release, currently, judges are only permitted to consider whether defendants are likely to show up to court and whether they are likely to commit further crimes.

Fear-mongering directed at vulnerable populations is an unfortunate side effect of the turmoil and uncertainty society is grappling with amid the pandemic. This tendency should not lead to the unnecessary suffering of innocent people who happen to be accused of a crime. Hopefully, the better angels in the New York legislature will prevail, and we will be able to take further steps toward dismantling the unjust cash bail system.