Third Way: New York's Bail Reform Is Misunderstood
athima tongloom
When Kalief Browder commit suicide in 2015 as a result of the mental distress following years of solitary confinement and jail time, the bail reform movement gained further momentum. Browder’s situation had exemplified the disparities that cash bail exploits against those with less means. His family could not afford the $3,000 bail, and he ended up on Rikers Island for three years, two of them in solitary confinement, after continuous postponements.
Browder’s case was brought up to support the bail reform law the New York State Senate passed in 2019. Andrea Stewart-Cousins, the majority leader, and a Democrat, said that her party wanted to “make sure that we’re not criminalizing poverty, and that there would never, ever, ever be another instance of a Kalief Browder.”
The signature aspect of the new law is removing the option of cash bail for most of those charged with non-violent felonies and misdemeanors. This would allow more people who are arrested to be released as they await the next court date, instead of remaining in jail during that time. Perhaps because of the Browder case, the law also enforces stronger adherence to trial deadlines.
The point of ending cash bail is to ensure that people are not punished because they cannot afford to pay. By removing this arguably superfluous barrier, those who are arrested will have their release determined by other factors besides their ability to pay bail. Specifically, the consideration of recidivism risk and whether they will return to court by the declared date.
Republican lawmakers in New York have long chastised this bail reform law. Rep. Elise Stefanik called it “reckless and dangerous.” Rep. Nicole Malliotakis argued that it allows “career criminals to repeatedly wreak havoc on our streets.” Rep. Mike Lawler asserted that “Cashless Bail has been an unmitigated disaster.”
During the 2022 midterm elections, Democrats were remarkably weak on the issue, neglecting to defend the bail reform laws their party is responsible for. There were several factors for this, including the fact that it would be harder to bring an anecdotal success story for bail reform, such as an innocent person being able to continue with their life since they were allowed cashless bail. Meanwhile, Republicans brought compelling anecdotes of criminals who are released only to commit a heinous crime. There are also a significant number of Democrats who are skeptical themselves of the bail reform legislation. New York City Mayor Eric Adams, for example, blasted bail reform and expressed concern over the recidivism of a select few individuals.
One can certainly argue that Democrats might have fared better in New York had they embraced the bail changes. But all of this begs the question: is this bail reform bill, and specifically cashless bail, a driver of increased crime? The statistics suggest that this is not so.
Keep in mind that cashless bail targets only the fiscal matter surrounding release. In theory, this should have no effect on the severity of the crime that the arrested and released individual is accused of committing. That theory appears to ring true.
Studies show that cashless bail does not increase recidivism, with the exception of select, and few, circumstances involving “high risk” individuals with longer criminal histories. Even when New York had a worrisome uptick in crime in 2020 and 2021, this was not attributable to bail reform, as this was experienced regardless of the bail laws of various states. Indeed, New York still remained safer on average nationally.
Remarkably, in 2020, then-NYPD commissioner Dermot Shea claimed that Covid-19 and bail reform were among the reasons shootings were on the rise in New York City. That was not the case at all, however. The police department’s own data showed that most of those released under bail reform or Covid-19 measures were not connected to the shootings.
It is vital that people avoid confusing supposed bail reform flaws with other circumstances that could be influencing fears among certain people on the right. For example, there is the standard horror story of someone being let out on cashless bail only to commit a violent crime. But the blame may not necessarily be tied to bail reform, but rather another statute that predates this law by 50 years.
A statewide New York law passed in 1970 forbids judges from using “dangerousness” as a metric when considering bail. Rather, the only factor allowed is whether the defendant would return to court on the designated date. One could debate the merits of this and whether “dangerousness” is a valid crime deterrence or a subjective consideration which disproportionately affects minority groups. But it seems that the problem Republicans have is not with the current reforms, but rather criminal justice procedures as they have existed in New York for half a century.
Why Republicans specifically target the recent laws can’t be certain, but perhaps they should clarify that their desire is to make a change to the status quo. It just may not be as flashy promoting a reform to a law from so long ago.
Cashless bail allows for a fairer criminal justice system. This reform ensures that poverty is not criminalized — that people do not have to sit in jail simply because they cannot afford bail, which is a reason unrelated to public safety.
The current bail reform policy, based on present information, goes to great lengths to combat inequities while not sacrificing criminal justice and public safety. That is not to say that the law could not be improved with revisions, which have in fact been welcome developments since 2019. For instance, hate crimes and certain kinds of theft were added as crimes for which a judge can set bail.
Bail reform is something that we should build upon and improve, not get rid of. On the grand scale, New York’s bail reform law has overall met its goals of creating a safe and just society and ensuring that a tragic case like Kalief Browder’s never happens again.