Cash bail for most misdemeanors and nonviolent offenses ended in New York on Jan.1. This has spurred a new focus on pretrial detention. Unfortunately, lost in the current debate about bail reform is what led to these historic changes and why the reforms must not be rescinded: the high rates of pretrial incarceration of people who are legally presumed innocent, and the damage caused to them and society as a result.
The stark reality is that in New York far too many people were held in pretrial detention simply because they could not afford to post bail to regain their freedom. Bail was routinely set at arraignment in most criminal cases. This led to unacceptably high rates of pretrial detention of the indigent, here and across New York State. Furthermore, most of those being held in pretrial detention were accused of committing minor offenses. They were held in custody for one reason alone—they were too poor to pay the bail that was set.
Despite what many people believe, the crime rates in our community, across New York State, and in our nation are at historic lows. Since the early 1990s, rates for violent and nonviolent crime have fallen significantly. Over that same period of time, however, the rate of pretrial detention has skyrocketed. Currently, more than 460,000 persons are incarcerated, awaiting trial in local jails across the United States. Most people held in local jails have not been convicted of any crime. For example, in Monroe County from 2010 to 2014 more than 20,000 people
spent one or more days in custody on bail that was $2,500 or less.
Persons who are held in pretrial detention suffer significant harm. In addition to risking the loss of their jobs, homes, or even custody of their children, they receive harsher punishments than those who had the means to avoid pretrial detention. Numerous studies have established that those who spend lengthy periods of time in jail before trial are much more likely to be convicted of the underlying offense than those who are released, taking all other relevant factors into account. They receive, on average, a sentence of incarceration that is significantly longer than that of similarly situated defendants who are released pretrial.
Additionally, pretrial detention is a criminogenic factor: incarcerating someone pretrial increases the likelihood they will be rearrested. Studies have also established that pretrial detention has a deleterious effect on long-term employment, as it contributes to the likelihood of a criminal conviction.
And these harms fall disproportionally on the poor and communities of color. Compared with white men charged with the same crime and with the same criminal histories, African American men receive bail amounts 35 percent higher; for Hispanic men, bail is 19 percent higher than for white men. Extensive research shows black and Latino people are more likely to be detained than white people with similar charges and histories. Studies have found, for example, that African Americans face higher bail amounts and are less likely to be released on conditions that don’t involve paying money. Another study concluded that being black increases a defendant’s odds of being held in jail pretrial by 25 percent.
For these reasons, our community should be very concerned about high rates of pretrial detention and work towards reducing the number of persons who are held in jail awaiting trial
. New York has enacted historic reforms to the pretrial detention statutes to significantly reduce pretrial incarceration. These reforms preclude a person who is charged with a minor crime or nonviolent felony from being incarcerated pretrial. Those charged with a violent felony offense, a sex crime, domestic violence offense, or other serious felonies can have bail set or be remanded to custody at arraignment.
The reforms have been a huge success. In January, jail population numbers saw a 30 percent drop in pretrial detention across the state, compared with January 2019. Seven thousand fewer New Yorkers are being held in custody at this moment compared to last year as a result of bail reform.
Instead of celebrating this, some in our community have engaged in a concerted effort to roll back reform. They claim that public safety has been compromised by limiting cash bail and urge a return to our prior system of pretrial detention.
They first argue in favor of “restoring judicial discretion” to incarcerate persons pretrial whom they deem a risk to public safety. However, the purpose of pretrial restrictions in New York (such as bail) has always been to ensure a return to court, not to ensure the defendant does not commit a new crime. This was always the law and remains the law in New York. “Public safety” was never a factor to be considered under the old bail statues. Returning discretion to judges to incarcerate people on minor crimes or nonviolent offenses will lead to greater incarceration, especially among communities of color.
To support their claim that the bail reform has made us less safe, they point to crimes committed by individuals who have been released pretrial. What this argument ignores is that people who had financial means would always “bail out”—no matter the seriousness of the charge or no matter their perceived threat to public safety—while poor people would remain incarcerated. We saw that locally with the Charlie Tan case, where Mr. Tan was able to buy his freedom pending trial despite being charged with murder. Prior to bail reform, non-indigent defendants charged with very serious crimes “bailed out”—and no one complained about that.
The third argument seems to concentrate on people who are released under the new bail law and who commit new crimes as an indictment against bail reform. However, the reality is that under the prior bail regime this happened all the time. Indeed, there is a sentencing provision that requires that a defendant who commits a new violent felony offense while out of custody on bail must receive a consecutive sentence unless there are mitigating circumstances. (See Penal Law § 70.25.)
The truth is this: Unless we lock up everyone pretrial, crimes will be committed by individuals who, although charged with a crime, remain innocent until given their day in court. If we change the bail reform laws to allow judges to hold people who may “re-offend,” we will be back to a system where the poor and persons of color are incarcerated and the non-indigent are freed. We cannot ignore the impact of bias (implicit, actual, and class-based) on our system of justice.
Don’t be misled by anecdotes of crimes committed by persons awaiting trial. Think instead about the 7,000 people who are not suffering in jail awaiting trial. Do not let fearmongering or misinformation return us to a system where thousands of New York citizens were detained pretrial on minor crimes. We should be proud of the reforms and their success in ending an unfair process that incarcerated people because they were poor.
Timothy Donaher is the Monroe County Public Defender.