There is currently considerable momentum in Albany to take up cash bail reform as early as next month. It is an admirable goal; a system that enables defendants with more financial resources to gain pretrial release—while poorer ones must await the disposition of their cases in jail—is clearly inequitable and unethical. Yet like with many reforms, getting the details right can be tricky, and the dangers of not doing so can result in unintended harm to the people you are trying to help.
One of those tricky details should involve making sure that the reform of cash bail does not result in more defendants eventually having a bench warrant issued against them. To understand the context for this concern, it is important to note that, according to a report last year by the New York State Division of Criminal Justice Services, bail was set in about 33 percent of all misdemeanor cases and 58 percent of all non-violent felony cases occurring outside of New York City. Critically, nearly two-thirds of these defendants were unable to make bail and had to stay in jail (the study reviewed the five-day period after a defendant was arraigned).
While it is unfair that so many indigent defendants are forced to stay in jail during this pretrial period, their detainment nevertheless has the side effect of preventing these defendants from missing court and therefore having a warrant issued against them. For those unfamiliar with the criminal justice system, a bench warrant commonly gets issued when a defendant fails to show up at a scheduled court date. By one recent count in 2017, there were about 5,300 people with at least one open warrant issued in Monroe County, with 3,500 of those individuals having open bench warrants, says Janelle Duda-Banwar, senior research associate at the Center for Public Safety Initiatives at Rochester Institute of Technology.
Duda-Banwar is working on a PhD from Case Western Reserve University, studying the warrants process in Monroe County. As part of her research, she has been interviewing local individuals who have lived with an open warrant to understand what led to that warrant and how it affected their everyday lives.
Duda-Banwar has found that local defendants have a range of reasons for missing court, including mistrust of the criminal justice system and fear over the outcome of their cases. Other reasons given involved limited financial resources, defendants who didn’t show up to court because they couldn’t afford to pay a court fine, for instance, or those who feared losing their job if they spent another day waiting in a courtroom for their case to be called.
To many of us, the reasoning of these defendants would seem, at best, shortsighted. Clearly, they ended up doing more long-term harm to themselves by skipping their court date and eventually having to deal with both their original cases and the bench warrants. Yet one of the many unfortunate consequences of deep poverty for some is the lack of resources—both internal and external—that underpin good decision-making.
When I spent time as a prosecutor in the Bronx, this was something I witnessed regularly. Nearly every day there were bench warrants issued in misdemeanor and non-violent felony cases where eventually dealing with the bench warrants would prove to be a bigger ordeal for defendants than dealing with their original cases.
In fact, Duda-Banwar found that the vast majority of the people she spoke with ultimately regretted having incurred an open bench warrant. They described a situation where they made an initial wrong decision and “things got out of hand,” leading to a paralyzing brew of fear and indecision about what to do next.
For many of these indigent defendants, having an open warrant hanging over their heads made an already difficult life more so, and took an emotional toll. According to Duda-Banwar, some of these defendants would “avoid formal systems” like homeless shelters and hospitals, mistakenly believing that these types of entities would turn them into the police. A number of those interviewed indicated that they had avoided going to a doctor’s appointment or picking up their prescribed medications out of fear.
Others she spoke with had gone even further and “socially isolated themselves,” largely staying home and off main streets, especially during the daytime. Some reported increased levels or depression and anxiety.
A key component of the theory behind a cash bail system is that those who make bail will subsequently be more likely to show back up to court, since failure to do so would result in the loss of the bail money they (or their families) put up. Once cash bail reform is enacted, it is expected that many more people charged with misdemeanors and non-violent felony crimes will no longer be required to post bail.
This was certainly the effect in New Jersey—which instituted cash bail reform over two years ago—where the statewide pretrial jail population has shrunk by over 30 percent. If New York’s experience proves to be similar, there will be many more opportunities for indigent defendants to make an initial mistake (i.e., not returning to court) that results in an open bench warrant plus all of the snowballing challenges that life with a warrant exacts.
This potential risk in no way justifies keeping the current cash bail system. But if reform results in us trading a system where the impoverished are too often unable to make bail for one where they are more often leading further marginalized lives under the weight of open warrants, then cash bail reform will be an incomplete victory. And the time to try to deal with avoiding this potential unintended consequence is now, while the details of cash bail reform are still being developed and negotiated in Albany.
Aristotle once said that “poverty is the parent of revolution and crime.” As our state grapples with cash bail reform, we must make sure to more broadly account for the multiple intersections between poverty and criminal justice if we are to truly make progress on either.