Why Activists Say New York's Cash Bail Reform Doesn't Go Far Enough
The bill passed on March 31 ends cash bail for most misdemeanors and non-violent crimes.
Following weeks of heated debate, New York Gov. Andrew Cuomo and state lawmakers finally passed the state budget on March 31 — and, along with it, several highly anticipated reforms to the criminal justice system.
The elimination of cash bail for most misdemeanors and non-violent crimes was among the measures included in the bill — which also banned single-use plastic bags and instituted congestion pricing in New York City — the New York Times reported.
The changes to the cash bail system are “a huge step forward because they mean that thousands of New Yorkers who otherwise might have had bail set at levels they cannot afford now won't have to face that,” Insha Rahman, program director for the Vera Institute of Justice, told Global Citizen.
The bill’s criminal justice reforms, including legislation that strengthens criminal discovery and speedy trial deadlines, are scheduled to take effect on Jan. 1, 2020, though activists are urging the state to implement them immediately.
While the change will certainly have a major impact on the lives of many, activists say it doesn’t go far enough in tackling a system that is perpetuating poverty cycles in New York and across the country.
“Why don’t I think they go far enough? The first reason is obvious: Money bail is just wrong,” Rahman said.
The cash bail system was meant to ensure that people arrested and charged with a crime appear at their court hearings, but the reality is, the system keeps people who have not yet been convicted of a crime in jail every day because they cannot afford their bail.
Across the US there are approximately 465,000 people in jail who have not been convicted of a crime yet, according to the Prison Policy Initiative. Instead, they are forced to stay in jail for days, weeks, or even years while they await their trials, because they can’t afford their freedom.
Faced with this uncertain outlook, many simply plead guilty to get out of jail faster.
Last year, recognizing the disproportionate harm this system does to people living in poverty and communities of color — demographics that frequently overlap — Gov. Cuomo announced his intention to end the system on stage at the 2018 Global Citizen Festival in New York City’s Central Park.
But supporters of ending the cash bail system entirely, like the Vera Institute, the Bronx Defenders, and Global Citizen, were disappointed by the bill’s failure to end money bail for violent offenses.
Cash bail still stands for “the most serious of offenses” — like those involving domestic violence, sex-related charges, or violent felonies. This was, in large part, due to critics’ concerns for public safety, although judges are not actually allowed to consider a defendant’s “threat to public safety.”
“While we welcome the criminal justice reform provisions in the budget, there is still much work to be done to make this comprehensive vision of criminal justice a reality,” the Bronx Defenders, a public defender nonprofit, said in a press release.
“Pretrial detention is fundamentally at odds with the presumption of innocence, so we must continue to fight for comprehensive bail reform that ensures robust due process, eliminates wealth- and race-based detention for everyone, and stands firm against the introduction of dangerousness to our bail statute,” the group said.
An actual definition of public safety is not included in the bill, though criminal justice reform advocates had hoped that if the topic were addressed in the bill, it would be in the narrow and specific manner initially proposed by the governor’s office.
“We've seen jurisdictions that have you know adopted a very broad and vague standard of public safety that gets used for everything from having drugs to sleeping out on the street — and that just fundamentally wrong and biased and deeply problematic,” Rahman said.
“What was introduced by the governor's office was not a broad or vague standard of ‘dangerousness,’” she added.
Instead, it would have required a district attorney to show that a person accused of a crime “posed a threat of serious physical violence to another specific person, which would therefore be the basis on which to detain that person,” she explained.
However, this measure was ultimately not included in the bill. Activists are still hopeful that more comprehensive bail reform will pass before the state legislative session ends this June — and Gov. Cuomo has indicated he may revisit the issue.
"We did not handle the violent felonies," Cuomo told reporters after the bill passed. "That's something we're going to continue to work on."