Forty percent or more of people in jail awaiting trial in New York could soon be released as a result of the 2020 Bail Reforms Bill that went into effect on January 1. The bill, which was passed in the state Senate by a Democrat majority last year, eliminates bail for defendants being prosecuted for misdemeanors, felonies labeled nonviolent, somefelony robberies, and burglaries in the second degree.
While 40 percent might sound like a high number, the statistic may go up as the law is implemented. The Vera Institute of Justice predicts that’s a conservative estimate of the effect the bill will end up having on prisons in New York.
Bail is supposed to encourage defendants to show up in court. It’s an indeterminate amount of money that judges can chose to charge defendants when the judges think they might attempt to evade trial. In a criminal case, the defendant goes through two court hearings. The first formally introduces the charges to the defendant, at which point they have a chance to enter a plea. The second trial, which happens at a later date, evaluates the charges in light of the evidence.
Sometimes, judges release defendants on the good-faith promise that they will return to court for their trial, and that promise is called a “release on recognizance.” After swearing to their return, the accused is free to go.
But not all defendants can be considered trustworthy—especially when the crimes they are being charged with are substantial. It’s in these instances where bail comes into play. The amount is up to the judge: it could be as little as $100 or well above $10,000. If the defendant meets all required court appearances, that sum will then be returned. When the accused is either unwilling or unable to pay the bail, he’ll await trial in jail.
To put it bluntly, bail is either court insurance or jail assurance.
But as of January 1 in New York, bail is no longer applicable for misdemeanors, felonies labeled nonviolent, and some instances of theft. For violent offenses, bail is still applicable. In cases involving a charge of violence, the bill instructs judges to take into account the severity of the crime and a defendant’s ability to pay the amount. With the exception of those charged with violent crimes, a whole lot of people are in prison right now for a bail that no longer applies to them.
More People Charged With Crimes Free
For better or worse, individuals who have been charged with things like driving under the influence, possession of a controlled substance, stalking, trespassing, assault as a minor, and vandalism could be reappearing on the streets. Some think that’s a cause for concern, especially personnel in law enforcement like New York City’s police commissioner, Dermot Shea.
“The cash bail is not at what the heart of what concerns me,” Shea told 1010 Wins, a New York radio outlet. “It’s the fact that when we have an individual who poses a danger to the community, that’s arrested over and over, and really breaks laws, that this person gets put right back on the street. It’s not about the cash bail, it’s about danger as the priority for us.”
A research brief from the John Jay College of Criminal Justice took the policies laid out in the bill and applied them to New York City prison numbers from 2018. In 2018 in New York City, 31,609 people committed some sort of crime and, as a result, were subject to bail. Some paid and walked free and some didn’t and waited for their trial in jail.
Keep in mind that 31,609 is the total number of bail cases for the whole year—not all of those cases resulted in a stay in jail. Of those, bail was set and not paid for in 27,235 cases, resulting in the incarceration of the defendant. That’s 88 percent of cases involving bail in one year. Thus, in the vast majority of cases where a bail was set, the defendant went to jail before trial.
The study further found that if the 2020 Bail Reforms been in place two years ago, of the total 31,609 cases where bail was used, 20,349 would have no longer qualified. That’s 64 percent of all bail cases and a whole lot of defendants, most of whom would have otherwise been in jail.
With numbers like that, it’s not hard to see why commissioner Shea is worried about keeping New York safe. So it begs the question, why would Democrats want to pass a bill that makes a defendant’s return to the street more likely?
Lots of People in Jail Who Haven’t Been Convicted
There are two stated main reasons for the reforms. First, it’s there to decrease the amount of resources used on the criminal system. According to the Vera Institute, the daily average number of people in jail in NYC in 2018 was 24,000. The bill is partially an attempt to bring that number down, along with the costs associated with it. Secondly, and more importantly, the bill is supposed to address concerns that bail unfairly targets defendants with less money. And that’s really the crux of the issue.
Back in 2016, Jeffrey Pendleton, a 26-year old from New Hampshire, was charged with possession of substance. It wasn’t a particularly dangerous drug. It wasn’t cocaine or LSD or ecstasy, it was marijuana. His offence wasn’t really threatening as far as crimes go, but then again neither was his bail.
All he had to do was hand over $100 and Pendleton would have been able to walk free until his trial. But unknown to law enforcement, Pendleton was struggling to make ends meet, unable to pay rent, and, as a result, was incarcerated on March 8. On March 13, less than a week later, Pendleton was found dead in his prison cell. The cause of his death is uncertain.
While Pendleton’s story certainly isn’t typical, he isn’t the only one to have been unable to meet bail—even an extraordinarily low bail—and leave behind a sad story. Many defendants who can’t pay end up pleading guilty instead of fighting their charges, facing the consequences of whatever might come next. It’s stories like these that cause reformers to assert that bail unfairly targets poor people and makes some observers want to get rid of bail completely.
Yet Sometimes Bail Protects People
But here’s a different kind of sad story. In April of last year, Samuel Lee Scott, a 54-year old resident of St. Louis, was arrested and couldn’t afford his $5,000 bail to go home during a lengthy preparation for trial. Scott was well on his way to jail when a nonprofit group paid Scott’s fee, freeing him to go home to his wife.
Tragically, what the nonprofit overlooked was that Scott had been arrested on domestic abuse charges. What initially looked like a happy intervention soon turned murderous. Later that night, after having endured extreme beatings, Scott’s wife was rushed to the hospital and died from her injuries the Saturday after.
Both of these instances point to a need to reform bail policy. Yes, bail can hurt poorer individuals. But bail can also save lives and protect innocent bystanders. Clearly, some crimes are too dangerous to allow people to walk free. On the other hand, there are certainly people who have been unable to pay bail, thrown in jail for feeble charges, and suffered disproportionately terrible consequences.
Democrats are right about the need for a change in policy. But will the 2020 Bail Reform Bill provide changes that will protect poor defendants and the people on the streets?
We’ll Find Out the Effects Soon Enough
The real question is whether the 2020 bill has managed drawn the line somewhere down the middle. For now, that line has been drawn at violent crimes, which helps prevent cases at either extreme. Under the 2020 reforms, it appears Pendleton and Lee’s stories are more unlikely. Pendleton would have walked free until the time of his trial and Lee’s pretrial would have most likely been set at a much higher bail.
That may not be good enough. For commissioner Shea, keeping bail around for violent crimes but eliminating it for others doesn’t seem to comfort him all that much. A whole lot of crimes in the middle of the two extremes still hurt innocent New Yorkers every day.
“I don’t see a distinction between these low-level crimes and…let’s say a robbery or one of the more ‘serious’ crimes,” he said. “Each crime really has an impact on victims.”
It’s possible that in a well-intentioned attempt to solve one problem, the bill has created an entirely new set of public concerns. This becomes increasingly troubling as recent antisemitic attacks have taken the criminal spotlight in NYC.
Last month, for instance, a woman named Tiffany Harris was taken into custody and released without bail after allegedly slapping a number of Jewish women. Small acts of aggression like these have been building up in the last few weeks, leading to public outcry and demonstrations. It’s in light of recent events like these that led Gov. Andrew Cuomo, once an avid supporter of the 2020 Bail Reform Bill, to admit that it might need a second look.
“We’re going to need to work on it because there are consequences we have to adjust for,” Cuomo told reporters at CBSN. Cuomo made no mention of the 2020 Bail Reform Bill when he addressed audiences in his State of the State speech Wednesday night.