The Get Out Of Jail Free Card? New Bail Reforms for New York City

Governor Andrew Cuomo (D-NY) introduced a comprehensive proposal to overhaul the State’s criminal justice system to the State Legislature. The 5-point proposal includes a range of reforms, but the one getting the most attention is Cuomo’s proposal to eliminate monetary bail for misdemeanor or non-violent felony offenses.

As misdemeanor arrests outnumber felony arrests by a factor of 10, this proposed change will have an overwhelming impact on those arrested for the former. Typical misdemeanors in New York include public intoxication, vandalism, trespassing, jumping over a subway turnstile, or possession of marijuana.

While the way in which bail operates might be different depending on where you are in the US, the general concept remains the same. An accused person who is awaiting trial will be given a court date, and it’s in the justice system’s interest to ensure that the defendant will appear to face trial. While initially upon an arrest an individual may go into state custody, keeping a person in jail until trial is a burden on the correctional system. Bail follows as a solution to the issue of guaranteeing reappearance; in order to leave a correctional facility, the defendant will pay or pledge an amount of money to the court, set by the judge, with the understanding that it will be paid back upon completion of all court appearances. Bail isn’t applied for all crimes or all circumstances; for example, for some capital crimes like murder, or when the defendant poses a flight risk.

In theory this seems like a streamlined solution; however critics of the bail system point to the human factors that render it inefficient at best, and a cruel contortion of justice at worst. At the heart of the argument is the fact that the bail system unfairly penalizes the poor. In their survey of pretrial incarceration in New York City, Human Rights Watch found that in 87% of cases in which the defendant had bail set at $1,000 or less ($1,000 is the average bail posted for a misdemeanor), the defendants were not able to post bail and were incarcerated pre-trial. Many of those arrested already struggle to pay monthly rent or utility bills; for most, coming up with an unanticipated $1,000 is simply an unattainable goal.

And it is not just within the arrested population: Federal Reserve recently conducted a survey, finding that more than two thirds of Americans with incomes less than $40,000 said that they wouldn’t know how to fund an emergency $400 expense. The average bail is out of reach for a large swath of America.

The follow-on consequences for being incarcerated until trial can be severe. The average length of pre-trial detention in New York City is around 16 days. This represents a harsh interruption in one’s life, handicapping an individual from reporting to work, responding to family or community commitments, and oftentimes keeping them from paying rent or meeting other obligations.

It’s important to keep in mind that these are people who have not been charged with a crime; they simply cannot afford to go home to wait for the trial.

At Rikers’ Island, New York City’s most infamous correctional facility with a reputation for brutality, 85% of inmates are pre-trial defendants who cannot afford bail. For taxpayers too, the cost is high: in 2017, it was estimated that pretrial detention costs US taxpayers $13.6 billion dollars per year.

Not being able to afford bail has another consequence: an increase in guilty pleas at arraignment. Suppose a pre-trial defendant has been arrested for a crime that would carry no jail time should they be found guilty. Suppose the same defendant also cannot afford bail. For many who are innocent, pleading guilty may seem like the rational decision in order to avoid jail time. This creates a perverse incentive to place a permanent negative mark on an individual’s record, which can lead to harsh consequences, potentially affecting child custody, public housing, food stamps, and professional opportunities.

There are those who maintain their innocence and decide to fight their case from behind bars. Recent history has given us numerous heartbreaking examples of where this has resulted in catastrophic loss. Kalief Browder was 16 when he was arrested on the suspicion that he had stolen a backpack. He was charged with robbery, grand larceny, and assault, with his bail set at $3,000. Kalief maintained his innocence, but as is protocol, was sent to Rikers island where he spent the next three years of his life, all of which was served with Kalief having never been found guilty of a crime. During those three-plus years, Kalief reported multiple instances of physical abuse by guards and inmates, suffered through multiple stretches of solitary confinement, and was repeatedly offered deals by prosecutors to accept two or three-year prison sentences in exchange for a guilty plea. Kalief remained steadfast in his assertion of innocence. Soon after he turned 20, he was released; the charges were dropped due in part to lack of proof, and Kalief finally was able to go home.

However, the wounds of Rikers did not heal.

The scars of multiple years of imprisonment resulted led to what his family called a gradual personal deterioration. In 2015, at the age of 22, Kalief committed suicide, with many supporting his case saying that this dark turn was due to the multiple years of psychological and physical abuse he had suffered at Rikers. While there were many failures in the way in which Kalief’s case was handled, perhaps one of the more heartbreaking details rests on the fact that had Kalief’s family been able to pay the $3,000 bail, none of the trauma would have occurred.

In 2017, on any given day, there were approximately 451,000 people incarcerated in the US pre-trial. These numbers are staggering, and in response, there has been a national movement to reform the cash bail system. At the State level, New Jersey has led the nation’s efforts to this end, and as of late 2017 in the state cash bail has been nearly eliminated. This has been largely applauded across the country, with the largest critics coming from bail bondsman, whose businesses are being shuttered in the wake of such legislation.

Some also point out the cases in which defendants flee, or go on to commit other crimes, those these instances have been rare. And Governor Cuomo’s proposal is more nuanced than a blanket proposal to eliminate cash bail: In his proposal, he makes exception for allowing bail for crimes such as domestic violence offenses, where public safety or the safety of an individual is of concern. Additionally, it is important to note that this is merely one of five areas of suggested improvement included in his reform package. But should Governor Cuomo’s proposal be adopted, New York State would be among the first movers in the nation for a more compassionate, fair, and ultimately effective approach in this aspect of criminal justice reform.