Perspective: It’s Time to Take a Clearer Look at Bail Reform

The original bail reform law...exempted theft—the same crime that Kalief Browder was charged with—from bail, along with most misdemeanors.

Theft is a nonviolent charge—if a gun or weapon was involved, it would become robbery. Instead, theft entails “someone going to CVS and taking a bottle of shampoo,” [Yung-Mi] Lee [of Brooklyn Defender Services] explained. “You’re homeless and living on the streets and you go to the CVS and you steal a sandwich in the refrigerator aisle.”

Now, theft will be eligible for bail and pre-arraignment detention in certain circumstances. A judge may set cash bail for someone accused of theft if the alleged theft occurred while the person was released on a prior charge or given a desk appearance ticket, which is similar to a summons. The judge must also find that the alleged theft was “in furtherance of other criminal activity” and was not “negligible.”

Neither of those terms—“negligible” or “in furtherance of other criminal activity”—has yet been defined.

“It’s obviously going to be subjected to wide-ranging interpretation,” Lee said, by both prosecutors and judges. One judge, for example, might deem stealing $50 worth of items negligible, while another wouldn’t agree. “There’s probably going to be discrepancy across the state depending on who the judge is.”

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