Third Way: Reform New York’s Bail Reform
Nathan Griffith
The concept of our modern-day cash bail system in the United States originates from the 5th century when Germanic tribes migrated to England. These tribes brought with them a brute-force system for settling disputes, which involved the families of victims and the accused engaging in physical fights. This system then evolved into the accused having to provide monetary compensation to the victim for his or her wrongdoing. The accused would have a surety backing him - a member of his family who would agree to settle the debt if he could not.
At first glance, the modern-day cash-bail system appears the same as this. In order for a defendant to not be detained in jail before a trial, they must pay bail to the court. In the early 1900s, America instituted a commercial surety system in which a bond agent would provide the money for bail. However, a key difference between this and the familial surety system is that these lenders are able to demand both repayment of the bail as well as charging non-refundable fees for paying the bail in the first place. If one can afford their own bail, they are also able to self-pay and thus cut out the third party of lenders.
The Discrimination of For-Profit Lenders
However, not everyone is able to pay out of pocket for bail. This is where lenders and bond agents make a profit, as they charge fees for co-signing a bail agreement as well as possibly expecting some return of the money, depending on the lender. Since rich people are typically the ones who can afford to pay bail by themselves, this system and the lenders are profiting off of low-income defendants. Sometimes the defendants cannot even afford the fees that are associated with paying the lender and thus they are forced to remain in detention while they await their trial, which can take years. By default of the society that we live in, this has also affected minorities more, as they are more likely to be lower-income and unable to pay the bail, as well as the fact that judges typically assign them greater amounts of bail than white defendants. As this system has historically discriminated against minority groups, this has left people of color and low-income defendants stuck in jail before being convicted.
New York Bail Reform
In acknowledgment of the systemic discrimination of the cash-bail system, New York Democrats began to call for bail reform. In 2019, the New York state legislature passed a bill that would effectively eliminate 40% of all those who were in jail awaiting their trials. The bail reform bill, backed by then-Governor Cuomo, stated that, instead of applying bail to every case and defendant brought to court before their trial, bail could only be applied to certain charges and all other defendants must be allowed release until their trial might find them guilty. This bill allowed judges to set certain nonmonetary conditions for defendants to be released, such as pretrial supervision or electronic monitoring, which holds defendants responsible without forcing them to pay money. The only charges that the bill allowed for cash bail are violent felonies, such as sexual assault.
While this bill was backed by Democrats, after it was implemented it created a divide between the state senators of the Democratic party. Although many of the bill’s opponents were policemen and prosecuting attorneys, several Democratic members of the New York state assembly spoke out against the bill after its passing. The more moderate Democrats were less likely to staunchly stand in support of the cash bail reform, especially after some crime stories were sensationalized in the news and falsely attributed to the new bail law.
Critics Speak Out
Like all bills, the bail reform law has not come without its critics. The largest criticism behind the new law is that it allows for criminals to be out on the street and thus able to harm other people since they are no longer forced to await their trial behind jail bars. Opponents of the bill were quick to point out this flaw in the weeks directly after the bill first went into effect in the beginning of 2020, when the state saw an increase in anti-Semitic hate crimes. Three of the crimes were carried out by one woman who had been released to await her trial at home following the implementation of the new bail law. Critics claim that this law will lead to an increase in crimes since criminals are on the street as judges no longer have as much discretion regarding whether someone should await their trial in jail or not.
Yet this criticism is a sort of logical fallacy. While it is true that the new law allows potential criminals to be free until their trial, this was technically always true. The fact that cash bail exists as an option means that alleged criminals do not have to wait for their trial in prison – they can wait for it in the security and comfort of their home, continuing to live their daily routine. The only difference is that now all defendants have this option, as opposed to only the rich defendants previously. Cash bail judges have historically discriminated against black defendants, who are 3.6% more likely to receive monetary bail than their white counterparts, and also receive higher bail amounts. White people thus were usually able to go free before their trial, sometimes unrelated to whether they were rich or not, while people of color are forced to remain in jail. The arguments against the implementation of this new reform are therefore implicitly rooted in racism and classism, as rich and white alleged criminals have always had the choice to wait for their trials outside of the jail.
Unfortunately, in the case of New York’s bail reform law, the critics overcame the positive effects of the law. Just three months after the bill had gone into effect, changes were already made in order to make more cases and defendants eligible for cash bail instead of non-monetary resources. For the first couple of months that the bill was implemented, the percentage of cases that received bail or detention at arraignment decreased sharply. However, they began to rise during the summer for both nonviolent and violent felonies until they reached about the point that they were before the bill went into place.
As it stands right now, it appears that people of color and low-income defendants are still being discriminated against by the bail system in New York. While attempts at bail reform were made, the critics were heard much louder than the proponents and changes to the bill ultimately led the court system almost back to where it had started. Hopefully New York will reevaluate its bill once again and find a way to ease people’s minds about the dangers of crime while simultaneously ending this aspect of the systemic discrimination within the prosecution system.
