OP-ED: BAIL REFORM IS ALREADY WORKING: LOOK BEYOND THE BREATHLESS FEARMONGERING
By SCOTT HECHINGER
Activists rally outside the Manhattan Criminal Courthouse at 100 Centre St on March 14, 2019 in New York. They called on Manhattan DA Cyrus R. Cance, Jr. to resign for failing to support the Bail Elimination Act of 2019 and the Discovery for Justice Reform Act. (Alec Tabak/for New York Daily News)
In January 2019, almost one year to the date before the new bail reforms in New York went into effect, I met a 64-year-old man named Adrian Rose. Rose had just been arrested and charged with a violent felony assault for allegedly attacking an EMS officer in the back of an ambulance while on the way to a hospital in Brooklyn, a claim he adamantly denies.
Despite the seriousness of the allegation, the judge did not set bail. Instead, she released him on his own recognizance and he was given a date to appear.
No reporters were camped out in Brooklyn criminal court looking for cases to plaster onto the covers of the following day’s editions. There were no photographers to capture images of people in need of help, who reporters could then deride as “lunatics” or “jailbirds.” Police and prosecutors did not notify media ahead of time as part of their now-coordinated effort to incite fear in the general public about “violent criminals” and “crooks” roaming the streets. No police or prosecutor made inflammatory claims that they later had to admit were not true.
Far from it, Rose, like tens of thousands of others charged with all types of accusations before the bail laws ever went into effect, was simply trusted to show up to court, and he did.
To date, Rose has appeared at all 19 of his required court appearances, despite serious physical ailments and painful health conditions that require him to walk with a cane. At liberty instead of in jail, Rose was able to retain access to his doctors and specialists, and was also able to maintain his housing in a specialized shelter.
He has not been rearrested. Perhaps most significantly, he has been able to continue to maintain his innocence while fighting his case from a position of freedom, better able to assist me in his defense without the extraordinary pressure to plead guilty that pretrial detention imposes.
Rose’s experience is not novel or unique.
Public defenders know well what it really looks like when people are released, even those like Rose charged with violent felonies, instead of being jailed for their poverty. It does not mean “mayhem.” It means keeping families together; fostering jobs and productivity and help instead of hurt; saving taxpayer money; safeguarding health, freedom and public safety. It means an overwhelmingly likely (95%) return rate and overwhelmingly unlikely (2%) re-arrest rate for violent felonies.
Yet New York police and prosecutors, often partnering with the media, are now working overtime cherry-picking outlier cases and stoking fear to make it seem like releasing people, who are innocent until proven guilty, before their trial is some “wrong and insane” concept without precedent. As a public defender who has represented thousands of people in Brooklyn over the last eight years, I can confirm that these are outright lies and distortions. These cynical tactics, designed to maintain power and perpetuate unfairness and oppression at the expense of poor people, predominately from black and Latinx communities, are part of a long, racist tradition of criminal justice fearmongering.
Reject the fear and listen to this reality: New York bail reform is no more than a continuation of the measured, steady decline in those detained pretrial that has, in turn, paralleled a significant drop in crime rates.
In New York City, as jail incarceration rates have decreased by 74% over the last 3 decades, from 21,674 in 1991 to 5,674 as of Jan. 21, 2020, major felony crimes have simultaneously dropped by nearly 82%. For years, Brooklyn’s district attorney, Eric Gonzalez, has been practicing what the bail law now requires: consenting to release for most people charged with misdemeanors and non-violent felonies to fight their cases while at liberty. In the same period, not only were Brooklyn’s streets not filled with blood, the violent crime rate has plummeted.
New Yorkers should not give any credence to the exaggerated worst-case scenarios of police and prosecutors. We’ve already seen the truth and that is what we should rely on.
The new bail laws, derived from years of advocacy and experience, are an incremental step of simply disallowing the setting of bail on people charged with misdemeanors and non-violent felonies, all while increasing the availability of pretrial services for individuals who need it.
In the end, lawmakers decided to continue to allow judges to retain the discretion to jail (or release) people, like Rose, who are accused of a violent felony, if based on the individual facts of the case and circumstances of the person before them, they believe that makes sense. This is essentially the same policy that has always been in effect, but today, there are more options for services, including non-jail supervision and electronic monitoring that were not previously available.
The new bail laws are founded on the principle that if we truly want to stop incarcerating people before they have a trial, we have to limit judicial discretion in the bail-determination context.
That’s because for decades, public defenders saw what affording judges discretion to set bail in misdemeanors and nonviolent felonies really looked like. Despite New York having one of the most progressive bail laws in the country — a strong presumption in favor of release, the rejection of the concept of labeling people as “dangerous” or expecting judges to predict the future, and the availability of multiple forms of bail intended to ensure more people were released — judges routinely and purposefully set bail in amounts people could not afford.
The result: Thousands of people were locked up, pretrial, presumed innocent, and only because they were poor. The problem was not the previous bail law we had. It was trusting that most judges would follow its words and spirit.
Despite these truths, fear is a powerful force. And when used effectively, particularly in election years like the one in which we now find ourselves, it can all too easily create the political desire to pass harsh, costly and irrational laws that have an outsized and devastating impact on the people and communities I serve, or in this case, roll back the modest reforms that were put into place.
Now, sensing that fear is triumphing over reason, police and prosecutors are not just calling to give judges back the discretion they previously had which was used to increase incarceration. They are calling to give judges, for the first time in New York’s history, new discretion to detain people by trying to predict future dangerousness, a position already rejected by Albany lawmakers based on study after study as likely to exacerbate racism in jail decisions and not improve safety or make the system fairer.
Ending cash bail does not require the creation of a brand new mechanism to incarcerate people pretrial. Armed with even more power and discretion to do so, most judges will do so. We know this from experience.
Just last week, I stood next to a parentless teenager charged with gun possession, a violent felony under New York law, who has been released since August with no new arrests and is actively engaged with a youth social worker from Brooklyn Defender Services. I am certain he would have been deemed “dangerous” and detained.
That same day, I worked with a man charged with a misdemeanor, who needed housing, family and mental health services. Since his release in July 2019, he has been back to court six times and is now connected with a social worker and housing attorney. He is getting help instead of jail, but he easily could have been deemed dangerous and detained.
Adrian Rose, my client charged with violent felony assault, also could have been held in jail if judges were empowered to try to predict future behavior. Detained for the duration of his case with substandard health care, I firmly believe he would not have made it out alive.
Reactive criminal justice policy driven by outlier cases and stoked by fear tinged by racism is how we got into the current crisis of mass incarceration.
We must have patience for change. If we allow fear to triumph over truth and reason, the effort to “roll back” the bail laws could make matters worse than the conditions that drove New York lawmakers to reform the bail law in the first place. Our lawmakers must stand proudly, assured that they took this step towards basic human dignity. I am sure that that the right to be at liberty before one’s trial takes place will soon be seen as a basic human right. Let us all stand together and support this first step in that direction.