Arguably, criminal justice reform is becoming vogue. In part thanks to celebrities like Kim Kardashian West, who visited the White House to discuss criminal justice reform, it is clear that there is popular sentiment for improving the U.S. justice system. While this slowly growing movement brings hope, those who have been working toward criminal justice reform for years are much more wary of these changes.
The recent bail reform implemented by New York perfectly highlights both the hope that reform can bring and the immense amount of work that still needs to be done to make the New York criminal justice system more equitable. Conservatives have already begun to criticize the new bail reform as being “soft” on crime, likely foreshadowing more restrictions on the new law in the future. In this way, bail reform will likely reduce the number of incarcerated people being held in New York state jails and prisons, but it certainly will not radically change our criminal justice system in the way that conservatives worriedly purport.
To fully grasp the recent reform, it is important to understand how bail works. Simply put, bail is meant to ensure that a defendant will return to court. Jacob Silverman of HowStuffWorks put it best: “Bail works by releasing a defendant in exchange for money that the court holds until all proceedings and trials surrounding the accused person are complete. The court hopes that the defendant will show up for his or her court dates in order to recover the bail.” In most cases, a standard bail amount is set for each offense, but judges have broad discretion in setting the bail amount. Often, defendants cannot afford to post bail and are forced to turn to private bail bond companies; these companies will post bail for an individual in return for a nonrefundable fee that is about 10 to 15 percent of the bail amount and the remainder is covered by collateral such as a house or a car. Importantly, if a defendant cannot afford to pay bail or does not have the fee or collateral necessary to buy a bail bond, they will likely remain incarcerated until all legal matters are finalized in court.
This aspect of the system unfairly favors the wealthy, even in cases where they have committed what are considered to be more heinous crimes. Unfortunately, in many cases, innocent defendants are forced to stay in jail for years while waiting for their trials to be completed simply because they cannot afford to pay bail. For example, because his family could not afford his $3,000 bail, teenager Kalief Browder was incarcerated on Rikers Island for three years, during two of which he was in solitary confinement — only for his charges to be dropped for lack of evidence. Browder had been accused of stealing a backpack. Sadly, Browder later took his own life after sustaining irreparable traumas from his time on Rikers Island. While this highlights only one of the many problematic aspects of a cash bail system, it’s worth noting that black and Latino men have their bail set at higher rates as compared to white men who have committed similar crimes, indicating not only a class bias but a racial bias as well. A system that arbitrarily over-incarcerates poor people and people of color is an unjust system.
After years of mobilization from criminal justice activists, New York state has implemented a bail reform measure that went into effect on Jan. 1, 2020. This measure eliminated pretrial detention and cash bail for most misdemeanors and nonviolent felonies, with the exclusion of crimes such as sex offenses and witness tampering, which are legally deemed nonviolent but are nevertheless excluded from the bail reform. While the law brings new hope, it still falls short in many ways. Notably, the bail system remains unchanged for those charged with violent felonies and some misdemeanors. Furthermore, this bail reform will not lower the growing number of people facing incarceration for technical parole violations, which does not necessarily mean a defendant has committed a new crime; they have simply violated their parole rules. For perspective, a parole violation could be something as small as receiving a Facebook friend request from a past co-defendant, as described to me by a formerly incarcerated acquaintance.
Even with large-scale change already being unlikely, opponents of the reform have begun to use the specter of increasing crime as a scare tactic to vilify the law. Many conservative pundits have cited the case of Tiffany Harris, who was arrested and charged with slapping three Orthodox Jewish women in Brooklyn, released without bail and then rearrested for hitting another woman. While this case is certainly concerning, it’s important to understand that judges still have the authority in all cases to impose pretrial conditions like oversight by a case manager and referrals to treatment or counseling — something Harris received only after her second misdemeanor.
Despite the scare tactics, there is currently no evidence to support the belief that bail reform could lead to an increase in crime. In the words of The New York Times’ Editorial Board, “Experience elsewhere and ample research shows that there is no reason to believe New York’s reforms will lead to mayhem, or endanger the public.” With this in mind, we should embrace, not fear, the new bail reform law, and keep in mind that there is still much more work to be done.
For more information on bail reform, visit justicenotfear.org.
Kate Turrell is a senior double-majoring in sociology and women, gender and sexuality studies.