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Reversing Bail Reform: It’ll Soon Be Easier to Lock Up New Yorkers Than It Has Been in Decades

I’m not really sure what the hell the New York State Assembly is thinking, but passing an extremely controversial measure mid-pandemic in the middle of the night seems like pretty absurd timing. Moreover, that this particular legislative adjustment puts more people in jail to await trial at a time when governments are literally releasing people from jail because of COVID-19 is enough to make my head explode.

This is all about New York’s “bail reform” law. Here’s what that means.

Criminal justice reformers often point to bail as a key factor which bifurcates our justice system: one set of ‘rules’ for the poor, another for the rich. Those who can afford to continue their lives while waiting for trial can do so; those who can’t afford to bail out must rot wait in jail. And let’s keep in mind that in New York, the only criteria judges are supposed to consider relevant to whether an individual bails out is the person’s likelihood of returning to stand trial. That’s right. Contrary to popular belief (and stories in the New York Post), bail in New York is not about whether a defendant is “dangerous” and needs to be kept away from society pending trial.  New York changed that law in 1970.  Amazing what you learn when you actually look at the statutes.  (Other states do allow judges to consider “dangerousness” in deciding on a defendant’s bail.)

Those who operate inside the flawed machine of criminal justice, however, know that judges are swayed by their own perceptions of “dangerousness.” Those defendants who appear scary are remanded until they can post bail, while those who seem harmless are released on their own recognizance until trial.  The extent to which such a system leads to disproportionate incarceration among minorities has been studied many times (such as here, here, here, here, and here) and debated publicly very often.

This discussion is not limited to New York. It’s what’s happening everywhere, which is why states like California and New Jersey have significantly modified their bail systems to ameliorate some of the bias.

Not long ago, New York State adopted bail reform measures – specifically, the elimination of pre-trial detention and cash bail for most misdemeanors and so-called “non-violent felonies.” The new rules went into effect on January 1, 2020, to much whining from the usual police unions and prosecutors who fancy themselves “tough on crime.”  New York Gov. Andrew Cuomo called the change “the most historic criminal justice reform in modern history in the state” back when the bill was signed.

America’s gubernatorial sweetheart, however, has changed his tune considerably; this week, he endorsed a plan that reverses many of his earlier bail reform measures.  The new law, passed as part of the new state budget in the wee hours of Friday morning, eliminates cash bail altogether.  It instead allows judges incredibly wide discretion over who must report to jail while awaiting trial. Not only are more people (including those accused of misdemeanors) eligible for remand, but now, judges are specifically permitted to consider both the “dangerousness” of a defendant and the “weight of the evidence” against that defendant.  This is a major walk-back of not just New York’s most recent bail reform measure but also its 1970 bail reform measures.

As a brief sidebar, this whole “weight of evidence” thing is especially disturbing to anyone who understands innocent-until-proven-guilty. As a society, we disagree on a lot, but we generally agree that punishment comes after guilt is proven.

These changes to New York law would be problematic at any time.  A memo opposing the move called it “unconscionable” and argued that it would “eviscerate the presumption of innocence and will greatly increase the number of presumptively innocent people who are subject to pretrial detention.”

Right now, though, legislation incarcerating more people during the coronavirus outbreak is as irrational as it is inhumane. The infection rate at New York City jails is reportedly 75 times higher than the rate for the rest of the country. Rikers Island, at which hundreds of inmates and officers are infected with coronavirus, is a particular disaster for inmates and corrections staff alike. New York City had plans to close Rikers Island in 2026. In fact, the bad timing is so obvious that the New York State Sheriffs’ Association and the New York State Association of Chiefs of Police issued a joint statement Monday asking that the vote on the bill be delayed until after the coronavirus crisis passes. Many of the members of those groups complained about bail reform.  Now they’re complaining about bail reform reform.

If you’re thinking you may have heard something else about jail and coronavirus recently, you may be remembering this piece or perhaps the many reports that inmates across the country — and in New York in particular — are being released to slow the spread of COVID-19.

New York Assemblyman Dan Quart (D-New York City) implied early Friday that those who voted to roll back bail reform measures did so in response to political and media pressure.

In a statement, Quart said:

Do not underestimate the devastating effects this rollback will have on Black, brown, and low-income communities. No one needs reminding why we fought for bail reform in the first place. We’re familiar with the statistics, the stories and the human lives at the center of this fight.  Unfortunately, today, we put human lives on the back burner in favor of capitulating to prosecutors, police unions, and the New York Post.

The bail reform rollbacks were passed following the day New York reported its highest-yet number of coronavirus fatalities.

[Image via Spencer Platt/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos