[A national movement stalled by backlash politics gets some new
wind at its back.] [[link removed]]

NEW YORK TRIED TO GET RID OF BAIL. THEN THE BACKLASH CAME.  
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Jamiles Lartey
April 23, 2020
Politico
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_ A national movement stalled by backlash politics gets some new wind
at its back. _

, Michael Appleton/The New York Times/Redux

 

The national drive to reduce jail and prison populations is getting an
unexpected nudge from the coronavirus pandemic, as many cities and
counties across the country try to reduce exposure to the virus in
crammed, unsanitary jails. One of their first targets: bail.

In New Orleans
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some city judges are reducing some bail amounts to one-tenth of what
they would otherwise be to let some people out. In Tulsa, Oklahoma
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the jail’s occupancy has reached a record low as people deemed
nonthreatening are being released without bail.

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.

This article is published in partnership with The Marshall Project
[[link removed]],
a nonprofit news organization covering the U.S. criminal justice
system. Sign up for their newsletter
[[link removed]], or follow The Marshall
Project on Facebook
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[[link removed]].

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.

Top: The New York City public advocate, Jumaane Williams, said at a
news conference in New York in early January that calls to change new
bail laws in the state were premature. Bottom: New York City Mayor
Bill de Blasio and New York Governor Andrew Cuomo pictured together in
Manhattan. | Stephanie Keith/Getty Images

The crime figures have been disputed
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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
[[link removed]].

Bail reformers across the country have been paying close
attention. “New York is certainly a cautionary tale,” said Alec
Karakatsanis, a reform advocate and executive director of the Civil
Rights Corps, a criminal justice nonprofit that has filed lawsuits
challenging bail in several states.

Now reformers across the country have begun regrouping and tweaking
their plans in an effort to learn from past mistakes in bail reform
packages, and looking hard at how to keep potential opponents in the
fold. “Even if you win a great legislative battle against them,”
said Karakatsanis, “it’s not like they'll just go away.”

“New York is certainly a cautionary tale.” 

—ALEC KARAKATSANIS, AND EXECUTIVE DIRECTOR OF THE CIVIL RIGHTS
CORPS

In Illinois and Colorado, where legislators are working on—but
haven’t passed—bail reform bills, proponents have zeroed in on new
political tactics like getting more buy-in from police and prosecutors
and building in time to educate the courts and the general public to
try to stem some of the pushback. Importantly, lawmakers elsewhere are
also betting that a quirk unique to New York’s bail system made the
state singularly vulnerable to a blowback—and they’re moving ahead
in their own states undeterred.

Now, after the debate spurred by Covid-19, they might get their chance
to deploy that new and improved playbook. “It was a needed
disruption to the direction that we were going in, and further
evidence that having so many people in jails, in New York or anywhere,
is a threat to public health,” said Scott Roberts, senior criminal
justice campaign director at the civil rights advocacy organization
Color of Change. “That’s true under normal circumstances, and we
see how that can really heighten at a moment's notice.”

 

Here’s how bail works in most jurisdictions across the country
today: Most people who are arrested and charged with crimes must put
down a refundable deposit to ensure they’ll show up for their court
date instead of skipping town. This means either putting up their own
cash, or paying a fee to a commercial bond company that posts bail on
their behalf. People who can’t pay bail or a bail bondsman remain
in jail.

The commercial side has turned bail into a policy with its own lobby,
adding friction to any reform efforts. This is nearly unique to
American legal system: Although the concept of bail has been around
for centuries, and is expressly mentioned in the U.S. Constitution,
the first commercial bail companies in the United States did not
emerge until the late 1800s. Today, though many countries continue to
use cash bail, the United States, minus four states, and the
Philippines are the only ones with a commercial bail industry.

Reform advocates say this creates unequal justice for rich and
poor—effectively jailing u-convicted people simply because they
don’t have access to money at the right time. Staying in jail has
cascading effects: While people are in jail awaiting trial, they
can’t work or spend time with their families; they face pressure to
plead guilty just to avoid the misery of being locked up. Jailed
defendants also often lose their jobs and suffer physical and
emotional trauma.

Many countries continue to use bail, but the U.S. and the Philippines
are the only ones with a commercial bail industry. | Top: Getty
Images; bottom left: Jim Wilson/The New York Times/Redux; bottom
right: Andrew Spear for The Washington Post via Getty Images

From a public policy perspective, research suggests that the economic
and emotional consequences of being jailed for bail leave people more
desperate and unstable than they would have otherwise been, and may
actually lead to more, not less crime.
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Chicago native Flo, who asked to be identified by his abbreviated name
out of concern about finding work, knows those consequences well.
After a 2016 arrest for a burglary he attributed to a gambling
addiction, he spent about two months in jail, unable to come up with
the $7,500 in cash for his bail. He was released after the Chicago
Community Bond Fund (CCBF), a nonprofit that raises money to pay bail
for defendants, tossed him a lifeline and paid his.

“Jail takes a toll,” Flo said. “The turnout of your case can be
dramatically different because you're under pressure. And when you go
to court, you’re ready to ‘jump out of the window’ as they
say,” and take any plea deal just to go free.

If Flo hadn’t gotten that bail, he wouldn’t have been able
to help his wife move when the couple were kicked out of their home;
he would have been forced to make court appearances in an orange
jumpsuit and shackles rather than a suit and tie. He kept working odd
jobs in warehouses and construction, rather than staying in jail and
costing taxpayers money. He eventually took a plea deal and served two
years after credit for good behavior. If Flo had remained in jail
awaiting trial, the data suggests he might also have received
a longer sentence
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Researchers have found that pretrial detainees have a lot less
leverage in bargaining with prosecutors when they are in custody
versus out of it.

There are more than 700,000 people in U.S. jails around the country,
and about two thirds of them have not yet been convicted of a crime.

When it comes to the number of people in local jails, bail isn’t
just a side issue: It’s the main driver. There are typically more
than 700,000 people in U.S. jails, and about two thirds of them have
not yet been convicted of a crime and are there mostly because they
couldn’t make bail. It’s an expensive policy: According to a 2014
Brookings Institution study
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local corrections systems cost taxpayers at least $22 billion a year.
And these numbers are completely separate from people serving
sentences in prisons.

On these moral and public policy grounds, activist groups and
legislators in many parts of the country have been pushing to
eliminate cash bail entirely. Some seek to replace it with algorithmic
risk assessments, electronic monitoring and other technical
innovations. Many just want to see as many people released pretrial as
possible, and think the criminal justice system shouldn’t try to
predict what people who are presumed innocent are or are not likely to
do if released. Virtually all reform advocates seek to release
defendants on the “least restrictive possible means” that ensure
they show up for court—sometimes simply a signed promise that they
will. Dozens of nonprofits have popped up to pay money bonds on behalf
of pretrial defendants in a push to empty jails.

Few efforts represented as sweeping a change as New York’s reform.
The law, which passed in April 2019, limited the number of crimes for
which judges could set bail, mostly to violent felonies. Almost
everyone else—those who make up 90 percent of arrests
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the state—could walk free while they waited for their trial date,
though judges could impose strict monitoring conditions. For the first
three months the law was in effect, from January through March, New
York’s jail population dropped sharply
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At the end of 2019, the jail population across the state was close to
20,000; for the first three months of 2020, it was around 15,000 and
continuing to shrink.

There are around 700,000 people in U.S. jails, and two-thirds of them
have not been convicted of a crime. | Top: Justin Sullivan/Getty
Images; bottom: Brian Vander Brug/Los Angeles Times via Getty Images

And then came news of a crime spike. A number of hate crimes had
shaken New York over the holidays, including a woman who was arrested
three times for assaulting Orthodox Jewish women in one week in
Brooklyn; outlets noted
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she had been released from jail under the state’s new bail reform
laws. In early March, the NYPD released a report
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that crime in February 2020 was up 22.5 percent compared with February
2019. In the report, the department explicitly blamed the uptick on
criminal justice reforms, including the bail reform law. According to
the department, in the first two months of the year, 482 people who
had been arrested on charges where cash bail was prohibited went on to
commit 846 new crimes.

The reported spike got wall-to-wall coverage in New York’s tabloids,
with headlines like “No Bail Madness” and “Revolving Door
Lunacy.” Legal aid groups disputed those numbers, pointing out
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arraignments—the court appearances where bail is generally
set—were down 20 percent at the same time, and suggested that
perhaps officers were making bad arrests to make the
stats _look_ bad and that prosecutors had to ultimately toss out
those charges.

Politically, though, the damage was done. Prosecutors joined the
police in blaming bail reform, and the governor, who had supported the
measure, vowed not to sign any 2020 budget
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didn’t reform the reforms. Dermot Shea, the New York City police
commissioner, took to the _New York Times_ with an op-ed
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“New York’s New Bail Laws Harm Public Safety.” The Senate
minority leader in New York, John J. Flanagan of Long Island, issued
frequent news releases, connecting grisly crimes to recent reforms.

Bail advocates were furious. As they saw it, the policy hadn’t been
in place long enough to know what the impact on crime—or anything
else—might be. “If we had been able to give those changes time and
space to take hold, I’m very confident that we would have seen how
right we were,” said Scott Hechinger, a New York bail reform
advocate. “The problem was, we didn’t have patience.” Instead,
by Hechinger’s read, fearmongering took over. Under the old system
those same individuals could, and sometimes did make bail, get out,
and commit a new crime—but news reports did not routinely highlight
such cases. According to an analysis by a pair of City Council
members
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Queens, people released under the new law made up, at most, 7 percent
of the increase in the crime rate. A group of 45 law professors signed
a letter to the New York Press Club calling on the city’s media to
provide “accurate and objective context” in coverage of criminal
justice reforms, saying the stories were designed to stoke panic and
calling them “Willie Horton-like claims.”

But these advocates couldn’t stop the rollback. In early April, the
Legislature amended the bail reform law with a number of changes set
to take effect in July. The changes expand the number of crimes for
which judges can set bail to include burglary, vehicular assault and
sex trafficking, among others, and crimes committed by a “persistent
felony offender.” And while advocates were crushed by the setback,
the move was still insufficient for the most fervent opponents of the
law. “This approach does not come close to addressing the problems
w/ the law. What about serious offenses that didn't make the cut?”
the Police Benevolent Association, a union for NYPD officers, tweeted
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response to the changes in early April.

 

In other states, some of which had seen years of groundwork on new
bail laws, reform advocates watched this backlash and snapped to
attention.

Colorado is one state where the lessons of New York could reshape the
bail debate. Governor Jared Polis recently told
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justice system forum that he would “like to see Colorado lead the
nation in criminal-justice reform,” and in 2019, state lawmakers
considered dozens
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crime and justice bills—more than some lawmakers said they’d seen
in any single legislative session.

One bill that failed during that session, though, would have
eliminated cash bail for low-level crimes: It passed the state House
but died without a vote in the Senate. Lawmakers there are hopeful
about reviving the bill this year and see lessons in the way the
reforms played out in New York.

“We’re trying to avoid the pendulum effect,” said Democratic
Colorado state Senator Mike Weissman, who was helping draft the law.
“If you’re making a reform change for a year or two, and then, you
have that revert when political winds change, then you're not really
doing what you wanted. So I think most people around here are trying
to dig in deeper and harder, get it right the first time and not have
it swing back.”

Supporters there are also quick to note that, in a state with
one-third the population of New York, many of the main actors in the
justice system know one another, which, some hope, might make the road
to reform a little smoother. Several Colorado lawmakers pointed to the
broad coalition assembled to help guide the bail reform proposal,
including high-ranking judges, prosecutors, police chiefs and
sheriffs. While their support is far from unanimous, it’s more
buy-in than existed in New York.

“In many ways you make a bill a lot better by having it fail several
times, by being forced to work on it. You get to see what it is that
causes everyone the most pain.” 

—MATT SOPER, REPUBLICAN STATE REPRESENTATIVE AND SPONSOR OF THE
BILL

Matt Soper, a Republican state representative in Colorado and sponsor
of the bill last year, pointed to the defeat last session as an
opportunity to fine-tune the proposal, adding concessions that could
appease some of those powerful judicial system actors. Soper
highlighted tweaks in the 2020 version of the legislation that include
making it a crime for a defendant released before trial to miss a
court date. “There’s a lot of those little moving parts here that
you don't see in New York or California,” Soper said. California
passed a law abolishing all cash bail in 2018, but its implementation
has been delayed pending the outcome of a state referendum on the
changes in the fall.

“In many ways you make a bill a lot better by having it fail several
times, by being forced to work on it. You get to see what it is that
causes everyone the most pain,” Soper said. He added that the
Colorado package will also set aside time and money for training
judges and other members of the courts on the new law, something
critics have said the New York reform did not sufficiently account
for.

“I think that New York situation highlights the extreme importance
of allowing time for implementation,” said Amber Widgery, a program
principal with the National Conference of State Legislatures. She
pointed to New Jersey as an example of how to make reforms last. The
state virtually eliminated cash bail in 2017
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has seen jail populations drop by about 30 percent and hasn’t seen
nearly the same backlash as in New York.

The rollout in New Jersey included training for judges and their staff
on the technical aspects of the new law, like how to use new
computerized risk assessment tools
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and on the changes to state court rules. The state also built a new
pretrial services department to orchestrate and track pretrial
release. Widgery said those efforts across a 2½ year span before the
new law went into effect helped to create a “culture change”
within the state judiciary. “That is something that legislators who
are eyeing reforms in this coming year are paying a lot of attention
to,” Widgery said.

And in general, lawmakers in Illinois and Colorado are feeling
confident that they won’t face the same kind of backlash, arguing
that New York has a unique legal environment that contributed to the
blowback. Thanks to a 1971 law, New York is the only state in the
country where judges don’t have the authority to consider a
person’s possible “dangerousness” in determining the conditions
of their release before trial. When reform negotiations in the state
began and the door was opened to modifying that system
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some lawmakers wanted to add dangerousness as a sanctioned factor for
pretrial release, in exchange for the total abolition of bail in the
state. Progressive reformers bristled—arguing that too often, judges
ascribe dangerousness in ways that amplify the racial discrimination
that pervades the justice system. Ultimately, they pursued a
compromise that did not add dangerousness but preserved bail only for
the most serious crimes.

A spate of hate crimes over the holidays and at the beginning of 2020
helped erode support for the bail reform law. Above, a coalition of
Jewish organizations, rabbis and elected officials express their
continued support of the reforms at a rally at City Hall on January
16. | Gabriele Holtermann-Gorden/Sipa USA

This made it easy for reform opponents in New York to argue that
dangerous criminals were being let out of jail along with the
nonviolent ones, and that the reforms had served to hamstring
judges’ ability to keep the public safe.

In states like Colorado and Illinois, where judges have long had the
discretion to consider dangerousness, the starting point for reform
negotiations look different. The Illinois Coalition to End Money Bond,
for instance, of which the Chicago bail fund is a member, accepts the
possibility of preventative detention on a case-by-case basis “to
ensure community safety and the defendant’s appearance in court”
as a “last resort.”

Sharlyn Grace, executive director of the Chicago bail fund and an
advocate of bail reform in that state, said she’s not at all
discouraged by the experiment in New York. With the support of
Illinois Gov. J.B. Prizker and legislators like state Senator Robert
Peters, she expects the state to pass substantial bail reforms this
year, or whenever the Legislature returns to business after the
coronavirus crisis.

 

These differences from New York, and the more successful test cases
like New Jersey, had advocates pushing forward with bail reform
changes with confidence in their own states in recent weeks. And
now, those seeking the maximum possible relief for poor pretrial
detainees may just have a new wind at their back, one blowing a lot
harder than the chill of New York’s backlash. When I asked Stan
Hilkey, executive director of the Colorado Department of Public
Safety, if Covid-19 might change the bail reform debate, he said
recently released inmates could make a good case.

“I think if you have evidence that someone is a danger to somebody,
present that evidence and we’ll go from there.” 

—ROBERT PETERS, ILLINOIS STATE SENATOR AND BAIL REFORM PROPONENT

“If they show up for court and don’t commit any more crime or
victimize people,” he said, “the data in the coming months and
years could write a very supportive story for Colorado’s efforts to
reduce crime and incarceration.”

Activist Marvin Mayfield speaks out against rolling back the reform
law at a rally at the state capitol in Albany on February 4. | Cindy
Schultz/The New York Times

Peters, the Illinois state senator, said the coronavirus pandemic, and
the threat to people in jails, strengthens the case for ending cash
bond. In his Cook County district, nearly 400 people in jail have
tested positive for the virus as of Sunday
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out of a population around 5,500, far outpacing the rate of infection
in the city. Six detainees so far have died after testing positive.

“When we come back in session, advocates can look at how many people
died in the jail who should have never been in there.”

_Jamiles Lartey_
[[link removed]]_ is a New
Orleans-based staff writer for the Marshall Project. Previously, he
worked as a reporter for the _Guardian_ covering issues of criminal
justice, race and policing._

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