Bail reform needs a do-over. After the riots, that’s truer than ever.
Bail reform needs a do-over. After the riots, that’s truer than ever.
U nder the rubric of criminal-justice reform, New York’s political class has privileged progressive politics over public safety. On January 1, 2020, a state law took effect eliminating pretrial detention by imposition of cash bail for almost all nonviolent felony and misdemeanor offenses.
Even before the outbreak of riots and looting following the May 25 killing of George Floyd spread to New York City and smaller cities upstate, New York’s bail reform was failing its law-abiding residents. In New York City, January 2020 saw a 30 percent increase in crime from January 2019. In January and February, 482 individuals were arrested for serious felony offenses, released without bail, and arrested again for committing another 846 new crimes — over a third of them serious felonies. By early March 2020, crime was up in by double digits. The NYPD released an unequivocal statement: “Criminal justice reform serves as a significant reason New York City has seen this uptick in crime.” The dangers were foreseeable and the consequences unnecessary.
New York passed bail reform legislation for two reasons — one noble, one ideological. In 2019, roughly six out of ten defendants were held in pretrial custody, many for lack of financial resources to make bail. Those advocating reform sought to reduce these numbers. Why should Harvey Weinstein, a sexual superpredator, be permitted pretrial liberty after forking over a million dollars but a poor kid who stole a few pints of Ben & Jerry’s ice cream be held on Rikers Island for failing to come up with $500? As a matter of fundamental fairness, one’s bank statement should not dictate one’s liberty status.
The other rationale serves the ends of a larger left-wing “decarceration” project, predicated on the concept of “mass incarceration.” The concept holds that a racialized War on Drugs has singled out nonviolent drug offenders, disproportionately black, for draconian punishment in the form of unjust prison sentences, thus swelling the U.S. prison population. Incarceration, on this view, is unjustly overused even for those who willfully violate the laws designed to maintain order and peace and to protect citizens from victimization, exploitation, and corruption.
A civilized society must ensure that its criminal-justice policies temper the strong hand of justice with the forgiving touch of mercy. But no one invested in the mass-incarceration theory seems to acknowledge what Stephanos Bibas, now a United States circuit court judge, has explained:
Prison growth has been driven mainly by violent and property crime, not drugs. . . . More than half of the extra prisoners added in the 1980s, 1990s, and 2000s were imprisoned for violent crimes; two thirds were in for violent or property crimes. Only about a fifth of prison inmates are incarcerated for drug offenses, and only a sliver of those are in for marijuana. Moreover, many of these incarcerated drug offenders have prior convictions for violent crimes.
As we trial lawyers like to say, never let the facts get in the way of a good argument.
Leaving aside the validity of the mass-incarceration theory, the appropriate remedy for an inequitable bail system would have been the complete elimination of cash bail. New York legislators, however, left in place a cash-bail regime for what they deemed the most serious and violent offenses (a disingenuous means of accounting for public safety). Thus they continue to exploit poor defendants’ precarious financial circumstances, vitiating the aim of eliminating a two-tiered system of justice. But that is not the worst part.
New York is the only state in the union that does not permit judges to consider a criminal defendant’s threat to public safety when imposing conditions of release or detention. Pretrial detention, admittedly, was not historically conceived to protect the public from dangerous persons. The Anglo-American tradition countenanced detention prior to trial to ensure that a criminal defendant appeared in court.
But in 1969, President Richard Nixon proposed “a meaningful assault on crime” in Washington, D.C., in which pretrial detention became a regulatory means of crime control. The president outlined the menace facing the nation’s capital during a time of unrest and called for a new law “whereby dangerous hard-core recidivists could be held in temporary pretrial detention when they have been charged with crimes and . . . present a clear danger to the community.”
Congress ratified President Nixon’s vision, first in 1970, in the District of Columbia, and then in 1984, at the national level. The Bail Reform Act of 1984 permits federal judges to detain criminal defendants before trial where no set of conditions would “reasonably assure . . . the safety of any other person or the community” from the predations of a defendant.
Undoubtedly, a free society ordered upon individual liberty, due process, and the presumption of innocence should have questions about a regime that detains a presumptively innocent defendant on the probability of future criminal conduct. In 1987, the Supreme Court addressed the constitutional concerns emanating from the 1984 act in United States v. Salerno. The case involved Anthony “Fat Tony” Salerno, boss of the Genovese crime family, who had been detained for dangerousness upon being indicted for multiple RICO violations by then United States attorney Rudolph Giuliani. Salerno’s attorneys argued that pretrial detention based on a defendant’s likeliness “to commit future crimes” violates due process because our constitutional order “holds persons accountable for past actions, not anticipated future actions.”
Writing for the Court, Chief Justice William Rehnquist stated that the due-process question turned on whether the act provided for pretrial detention as a regulatory matter or as a punitive one. Punitive detention without conviction violates due process; regulatory detention with appropriate procedural safeguards does not. In upholding the act, the chief justice wrote approvingly of the procedural protections it grants defendants to challenge detention and reasoned that the law “clearly indicates that Congress did not formulate the pretrial detention provision as punishment for dangerous individuals” but “instead perceived pretrial detention as a potential solution to a pressing societal problem” — namely, “the alarming problem of crimes committed by persons on release.”
The recent case of Tiffany Harris illustrates how the repeat-offender problem needlessly persists in the Big Apple. Harris was arrested for slapping three women (identifiable as ultra-Orthodox Jewish) on the street in Brooklyn while hurling anti-Semitic insults at them. Arrested for misdemeanor assault, she was released pursuant to New York’s bail reform. Two days later, she was arrested again for punching a woman. She was released again under the no-bail law. While meeting with a court-mandated social worker two days later, Harris assaulted her. With Harris due to be released yet again, Mayor Bill de Blasio’s office — not exactly a citadel of law and order — intervened to have her committed for a 72-hour psychiatric evaluation. Only after three separate assaults and mayoral intervention was the public spared further attacks by this perpetrator.
This case, and many others like it, no doubt persuaded Supervising Judge George Grasso of Bronx Criminal Court to call bail reform “a significant threat to public safety” and to announce publicly that “it is time to reform the reform.”
Bail reform figured prominently in America’s recent crisis of riots, violence, and lawlessness. On June 1, 2020, for instance, the NYPD arrested over 650 rioters. Department chief Terence Monahan reported to the New York Post that nearly all of the arrestees would be back “on the streets because of bail reform.” After they’re caught looting — which, as he pointed out, is burglary — “they’re back out.” One can only hope that the rioters’ and looters’ nihilistic assaults on police officers and destruction of property, and their return to the streets, will have one unexpected positive consequence: fresh thinking about the wisdom of the bail-reform law. Hope, though, does not appear justified, as one witnessed the wholly inadequate response by New York’s progressive leaders, Governor Andrew Cuomo and Mayor de Blasio, to the mob. Both publicly and dishonestly minimized the wanton destruction as the acts of a small minority of bad actors hijacking an otherwise peaceful protest.
Moreover, the most recent crime statistics demonstrate that, as of June 14, 2020, the number of murders in Gotham is double that of the same 28-day period in 2019. Currently, the number of murders for the year stands at 159—25 percent higher than during the same period last year. Burglaries and car thefts have also increased dramatically. While individuals are responsible for their crimes, New York’s bail reform is responsible for letting those apprehended rejoin the crime spree.
On January 1, 2017, New Jersey, one of 49 states that empower judges to detain dangerous offenders before trial, implemented smart, bipartisan bail reform. It eliminated cash bail, allowing judges to determine the conditions of a defendant’s release based on enumerated risk: (1) the likelihood the defendant will fail to appear in court; (2) the likelihood the defendant will commit another crime while on release; and (3) what effect releasing the defendant will have on public safety.
As a result, New Jersey’s pretrial detainee population plunged from 7,137 on January 1, 2017, to 4,967 on January 31, 2017, a decrease of 30 percent. From January 2018 to September 2018, New Jersey saw a 32 percent decrease in homicides, 13 percent decrease in rapes, 18 percent decrease in assaults, 37 percent decrease in robberies, and 30 percent decrease in burglaries, when compared with statistics from the same period in 2016. New Jersey’s experience teaches that we can eliminate the disparities a cash-bail system creates, ensure that more defendants remain at liberty, and protect the public from dangerous offenders.
Justice Louis Brandeis observed that “it is one of the happy incidents of the federal system” that a state may choose to “serve as a laboratory,” to “try novel social and economic experiments without risk to the rest of the country.” Fashioning a responsible balance between public safety and the rights of criminal defendants rests on valuable precedents set by 49 states, the District of Columbia, and the federal system. Rather than learn from these examples, New York has codified what Irving Kristol called “the politics of liberal reform,” which is “more concerned with the kind of symbolic action that gratifies the passions of the reformer rather than with the efficacy of the reforms themselves. . . . Unsurprisingly, this goes along with an immense indifference to consequences.”
Unlike professional activists and elected officials — and now rioters and looters — average New Yorkers cannot afford indifference to the grave consequences of this reformed bail regime. We must prevail on our political class not to sacrifice public safety on the altar of left-wing ideological pretensions. The ballot box (if not plundered by malcontents), this November, is an ideal place to start.