Bail Reform Too Far

While the bail reform activists were thrilled with the coup pulled off in the dark of night, more serious and more concerned criminal law folks cringed. For decades, we tried to reform various aspects of the New York criminal legal system that most of us knew and agreed were bad, unfair and, as might be admitted at the bar in Forlini’s, unconstitutional. But knowing the system was a wreck was the easy part. Coming up with changes to the system that would serve everyone’s interests, that everyone could live with, was hard. Very hard.

With the “blue wave” of 2018 came Democratic control of the New York Senate, and with it came people utterly unaware of the serious concerns, the years of trying to come up with sustainable reform and the recognition that swinging the pendulum too far the other way didn’t mean it would work, but that it would swing back.

Not that they understood. Or cared. Oh, they were so filled with their power and importance, and had the support of their tribe of brilliant activists, like Shaun King and the new breed of internet hucksters who spewed their mix of simplistic nonsense and half-truths to the useful idiots.

We had the chance to do serious reform. Instead, we got the fool’s Utopia.

To bail-reform advocates across America, this change is a no-brainer: Why incarcerate anyone, pandemic or no, just because they can’t post a cash bond? Their movement looked like a national wave just a couple of years ago, as states from Vermont and New Jersey to Alaska and Georgia rolled out new bail policies to reduce the number of people in jail. These ideas ranged from minor tweaks for only the lowest-level crimes to blanket eliminations of cash bail.

Cash bail exists not to keep people locked up, but to get them to return to court as required and not commit crimes in the interim. The bludgeon is money, for lack of any other mechanism to get people to comply. Do as you’re told and you get the money back. Don’t and you lose it. The amount of money fixed is, in theory, the amount necessary to keep the defendant in line; the “right” amount to compel compliance.

The problem is that it often didn’t work that way, and that people who couldn’t muster $100 were given $1000 bail for petty offenses, sometimes for reasons like prior bench warrants and sometimes for no reason at all beyond the baby prosecutor at arraignment asking for it. It’s critical to remember that the objective isn’t to keep the defendant in, but to let him out with an incentive to comply.

If judges did their job all along, this wouldn’t be an issue. Judges failed, largely because they didn’t take responsibility for the vagaries of what a defendant might do once released, and because the public was historically unforgiving of the judge who “blew” it be releasing the next killer. The most influential factor in bail in New York City was the New York Post’s front page picture of the “City’s Worst Judge.”

But just a few months ago, before the outbreak, that momentum hit a major roadblock. One of the most high-profile tests of bail reform, in New York state, sparked a political backlash and sent advocates into damage-control mode. In 2019, the New York Legislature passed one of the most progressive bail-reform packages in the United States, abolishing bail for many misdemeanors and nonviolent crimes. Soon after the law went into effect, in January 2020, the New York Police Department released figures showing a spike in crime and pointed the finger at the new, looser bail rules.

The bail reform enacted in New York was a “one size fits all” harebrained scheme, which eliminated bail for a broad range of crimes without regard to any of the competing factors that any serious reformer would have taken into account. It was a “lumpy” reform, based on lumping the poor charged with petty offenses who couldn’t make relatively low bail together with bad dudes, priors and warrants, The ironic exception was domestic violence and sex offenses, because it remains fashionable to detain them under the woke carceral regime, even if the exact same arguments apply.

When some bad things happened, as any modestly honest and intelligent person knew they would, like a defendant was cut loose and committed a heinous crime, it was used by the anti-reform forces to prove how crazy the reform was. It was nonsense, of course, as the same person could have been out anyway on bail, and no judge or prosecutor can see into the future to determine which public urination defendant is going to rape and murder upon release.

But the cops and prosecutors claimed, falsely, that crime immediately spiked as soon as bail reform went into effect, and as was obvious to everyone who understood that without a buy-in from both sides of the criminal law equation, there would be consequences.

The crime figures have been disputed, but tabloid headlines and anti-reform prosecutors jumped at the chance to fan the flames, and the new bail policies instantly lost popularity. The percentage of New Yorkers saying the changes would be good for the state dropped from 55 percent last year to 37 percent in January. Prominent politicians, including Governor Andrew Cuomo and Mayor Bill de Blasio, backed a new bill to roll back many of the changes, which passed April 3.

And like that, the three glorious months of reform went “poof.” The irony is that it never had a chance to see how well, or poorly, it would work out. Having enacted the reforms, it would at least have made some modicum of sense to give it a year or two and then assess its efficacy. But because it was so one-sided, so lacking in buy-in by police, prosecutors and politicians like Gov. Andy Cuomo and Mayor Bill de Blasio, it collapsed.

We could have had reform. Smart, sustainable reform. Reform that would serve both the accused and the public. We could have if only the unduly passionate had left it to the grown-ups to make it happen. But no.