Cash bail reforms complicate local criminal justice systems

Courtesy of Prison Policy Initiative

Kristen Applegarth was desperate.

The father of her children was cheating on her with her friend. One day, she told him not to come back home. Financially dependent on him at the time, she was left without an income to pay her rent. She had no one to babysit her children while she worked.

Then someone offered her drugs she could sell. She did not make much, but it paid for the roof over her head. But she said it was a mistake—one that landed her in jail back in 2014. She did not see her children for six months. Dutchess authorities arrested her for  intent to sell heroin, a Schedule One substance. It was her first felony charge, but it was serious enough to land her in jail on $20,000 bail.

On any given day in 2018, 72 percent of Dutchess County’s prison population awaited trial for crimes they had not yet been convicted (New York State Division of Criminal Justice Services, “Jail Population In New York State,” 01.01.2020). Statewide, people who had not paid bail composed 67 percent of New York’s prison population in 2017 (Vera Institute of Justice, “Empire State of Incarceration: Correcting the Overuse of Jail”, 12.2017).

Criminal justice reform advocates have long fought for the abolition of cash bail because of the two-tiered system of justice they say it upheld, disadvantaging the poor and people of color. Bail and pretrial custody are supposed to ensure that those accused of a crime show up to their court date. But, while in jail, they could lose their homes, jobs and custody of their children. Those who could not afford their freedom sat in jail, even as the financially privileged accused of the same crimes could walk free before their trial. 

A new law, entitled NYS Senate Bill 1509C, which  passed in April 2019 and went into effect Jan. 1 2020, has curtailed cash bail for nearly 90 percent of cases across New York State. These cases include most misdemeanors and nonviolent felonies. Judges can still set bail on a remaining 10 percent of arrests—including almost all violent felonies and certain nonviolent felonies, such as sex offenses and witness tampering (The New York State Senate, “Senate Bill 1509C”).

While advocates for the law—including Governor Andrew Cuomo (D-NY)—see the reforms as a step toward a fairer criminal justice system, some think the law goes too far. 

“In fact, [reformers] unnecessarily compromised public safety in the process,” Dutchess County District Attorney (DA) William Grady highlighted in an emailed statement.

Grady, who plans to retire after the next election and end his tenure as DA after 40 years, said that he supports bail reform but not to the extent to which Democrats pushed. “The essence of this concern lies with the fact that discretion has been taken away from judges in setting bail on those cases that clearly call for such,” he said.

For example, Grady claims a person could commit a robbery or burglary and a judge could not consider holding them on bail. He also claims that, under the new system, bail can no longer be used to detain someone in a serious domestic violence incident, even when a high risk of serious harm to the victim has been determined. 

S1509C takes a charge-based approach, in which the level of the offense and the charge determines whether the person must be released on recognizance, under pretrial supervision or if bail must be set: 

  • Misdemeanors: Judges must release the person on their own recognizance (without bail) or the person must comply with pretrial supervision. Electronic monitoring is only permitted for misdemeanors that involve domestic violence and sex-related offenses or if the person was convicted of a violent felony in the past five years.
  • Nonviolent felonies: Judges can consider pretrial supervision, such as electronic monitoring if release on recognizance is not appropriate. Judges may set bail for sex offenses, witness tampering, terrorism-offenses and felony-level criminal contempt in domestic violence cases.
  • Violent felonies: Judges can set bail if they find that release on recognizance, nonmonetary conditions or electronic monitoring is not sufficient to assure the person’s return for trial. Those charged with specific subsections of burglary in the second degree and robbery in the second degree with no violent conduct alleged must be released on recognizance or with pretrial supervision.

(Vera Institute of Justice, “New York, New York: Highlights of the 2019 Bail Reform Law,” 07.2019)

In the years leading up to S1509C’s enactment, New York advocates for bail reform pointed to New Jersey’s overhauled bail system as a success story. New Jersey eliminated bail in 2017 and has since witnessed a 30.4 percent drop in its pretrial population. People released under the state’s new system were no more likely to commit a crime pretrial than those released under the previous system, according to a report by the state’s Administrative Office of the Courts (Northjersey.com, “Did NJ bail reform cause a surge in crime? Court analysis says no,” 04.02.2019).

Among other differences between the two states’ bail systems, New Jersey allows judges to consider a person’s danger to the public when deciding bail. This is done on a case-by-case basis and is determined by a person’s criminal history and the charges they face presently (Northjersey.com, “Did NJ bail reform cause a surge in crime? Court analysis says no,” 04.02.2019).

New York is the only state to bar judges from weighing a person’s risk to public safety—potential of inflicting physical harm—when considering bail (Vera Institute of Justice, “New York, New York: Highlights of the 2019 Bail Reform Law,” July 2019/07.2019). New York has restricted this consideration since passing the state’s 1971 Code of Criminal Procedure law. Still, opponents of the 2020 reforms say that public safety is in danger.

Senator Sue Serino (R-Hyde Park) has been one of the most vocal legislators against the reforms since they were introduced in the State Assembly. She introduced two bills in the state Senate to amend S1509C, one of which would allow judges to consider a person’s danger to the public in their decision to set bail (The New York State Senate, “Senate Bill S6840”). The other bill would qualify certain domestic violence-related offenses committed by a family member for bail (The New York State Senate, “Senate Bill S6839”).

Serino supports the intent of the law and believes strongly in the presumption of innocence, which she shared in an emailed statement. But she feels that the voices of those who work to keep communities safe, such as victims’ advocates and law enforcement, have been ignored. “As a result, instead of creating a more balanced system, the scales of justice have been tilted to favor criminals and that’s not right either,” she asserted.

Proponents of S1509C have taken issue with rhetoric claiming the law puts criminals back into communities. New York Civil Liberties Union (NYCLU) Lower Hudson Director Shannon Wong emphasized that this discourse diminishes the presumption of innocence that is fundamental to the criminal justice system. 

“When you are charged with a crime, you are not guilty.” She elaborated, “There is a process that should occur before someone is denied their liberty, and that’s what this law is trying to ensure—that people are afforded their constitutional rights, due process and the presumption of innocence before they are incarcerated.” 

In response to the continuous debate about the threats defendants who walk freely pose, Wong pointed out that someone’s extensive criminal history often stem from over policing of communities of color and racial bias. “The truth is that lots of people are doing criminal behavior, but they’re just not caught,” she said.

The benefits and consequences of pretrial imprisonment—the result of unpaid bail—have also been debated. The NYCLU believes that the previous system of mass incarceration does not address the concerns of S1509C’s opponents.

“If we’re worried about public safety, then there are other solutions that would solve these problems—housing, jobs, mental health services and substance abuse [rehabilitation],” Wong affirmed. “Those services are what’s going to support people and encourage connection in our community, whereas mass incarceration is just diminishing people, exposing them to more violence and disconnecting them from all the things that ground them.”

But others believe that pretrial incarceration can connect people with some of these beneficial services. Grady believes that Dutchess is one of the most progressive counties in the state in terms of providing pretrial services to those involved with the criminal justice system. He revealed that incarcerated people with drug dependencies who would otherwise spend months in jail are encouraged to get treatment through the Dutchess County Re-Entry Stabilization Transition and Reintegration Track (RESTART) program. If they finish the program during pretrial, they are released on probation and avoid further jail time. 

“These offenders usually had serious prior criminal histories and were resistant to volunteering for drug therapy, creating risks to public safety. This was the only effective way to incentivize them to deal with their addiction and change their lives,” he elaborated.

The county’s Pretrial Release Services program evaluates incarcerated individuals with nonviolent charges the day after their arrest to determine if they qualify for pretrial release. Individuals can either be released on recognizance or released under supervision. Supervision can entail electronic monitoring, transitional housing or any other conditions that a judge deems necessary to insure a person’s return to court. “At any given time, between 600 to 700 offenders are participating who would otherwise be in jail because they simply couldn’t afford to make bail,” Grady said.

Applegarth says the justice system did not provide her this opportunity. In the context of her first felony charge, she wishes the justice system had treated her with more consideration.

“They put me right up there with the murderers and rapists,” she said. “I [would] rather lose my home and my belongings than to lose my freedom, dignity and the chance to see my children every day when I want to.”

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