New York Cash Bail Reform

New York's Cash Bail Reform

Overview

• A new law in New York sharply curtails cash bail for nonviolent defendants, aiming to prevent the jailing of poor individuals before trial due to lack of resources.
• The law has sparked backlash from district attorneys, judges, county legislators, and law enforcement officials, who raise concerns about potential dangers to public safety.
• Republicans are using the issue to criticize Democrats, portraying them as lenient on crime.
• New York is among the few states that have abolished bail for many crimes without granting judges the discretion to consider public safety risks when deciding whether to detain individuals.

Concerns Raised by Law Enforcement

• Police Commissioner Dermot F. Shea expressed concern over the release of individuals who pose a danger to the community, emphasizing the need for judges to make "common-sense decisions."
• Under the new law, judges cannot set bail for various misdemeanors and nonviolent felonies, including stalking, assault without serious injury, burglary, many drug offenses, arson, and robbery.
• Thousands of individuals awaiting trial will be automatically released, with approximately 90% of new defendants remaining free as their cases proceed through the courts.
• Most cities and counties will depend on supervised release programs to ensure court appearances.
• A report from John Jay College of Criminal Justice estimated that 20,000 more people in New York City would have been released in 2018 under the new law.

Bail System and Its Inequities

• Bail requires defendants to post cash or a bond, which they forfeit if they fail to appear in court.
• Since the 1970s, New York judges have been limited to considering only the risk of flight when setting bail, not public safety.
• Opponents of cash bail argue it criminalizes poverty, favoring wealthy defendants.
• The case of Kalief Browder, who spent three years on Rikers Island because his family could not afford $3,000 bail and later committed suicide after charges were dropped, is cited as an example of the system's inequities.

Legislative Action and Implementation

• The new law, passed by the governor and the Democratic-led State Legislature, bans imposing bail for most misdemeanors and nonviolent felonies.
• Judges are required to impose the “least restrictive conditions” to ensure court appearances, including supervised release, travel restrictions, and electronic monitoring for serious offenses.
• Courts have begun releasing defendants to avoid a rush at the start of the year, and opponents have criticized cases where released individuals committed further crimes.
• Supporters argue that judges can still set bail for almost all violent felonies and that the old law unfairly discriminated against the poor.
• Senator Andrea Stewart-Cousins defends the law as a matter of justice, emphasizing that allowing people awaiting trial to remain in their homes with families and jobs promotes stability in low-income communities.

Arguments For and Against the Reform

• Prosecutors and law enforcement officials argue that the law removes critical decision-making power from judges, who previously had some discretion based on arrest records and other indicators of potential risk.
• Some states that have curtailed cash bail have implemented systems for assessing the risk of re-offense, allowing judges to detain individuals to protect public safety, which New York has not done.
• District Attorney David Hoovler stated that while district attorneys generally oppose holding individuals solely because they cannot afford bail, the new law will result in the release of repeat offenders.
• Senator John J. Flanagan and other Republicans are using the issue in campaigns against Democrats. Flanagan stated, “This is not what justice looks like.”

Political Implications and Reactions

• Senator Michael Gianaris argues that the old system functioned as “guilty till proven rich,” which the new law aims to correct.
• Some Democratic incumbents are facing criticism from law enforcement groups, and some, like Senator Todd Kaminsky, are proposing amendments to allow bail for more offenses, particularly for certain sex offenses.
• Democratic lawmakers worry that the backlash will impede further criminal justice reforms, such as allowing people with felony convictions to vote and serve on juries.
• Some prosecutors, like Cyrus R. Vance Jr., have noted that New York State has not provided adequate funding for programs to track released defendants.
• Brooklyn District Attorney Eric Gonzalez supports the changes, citing lower crime rates in states that have eliminated cash bail.
• District Attorney Patrick Swanson expressed concern that individuals released for drug sales will continue to engage in such activities.

Advocacy and Defense of the Law

• New Yorkers United for Justice has spent over $2 million to advocate for the law, including hosting Democratic lawmakers for discussions and creating media campaigns featuring Eric Gonzalez.
• Khalil A. Cumberbatch criticized district attorneys opposing the law for not preparing adequately for the changes.