The Realities of Bail Reform

South entrance of NYC Criminal Courts Building / Photo by Caroline Chen for NY City Lens

The south entrance of NYC Criminal Courts Building / Photo by Caroline Chen for NY City Lens

By Yoonji Han and TuAnh Dam

Robert Rose III vividly remembers the 24 years he spent in jail. The empty cell, the cement walls, the rough jeans inmates were allowed to wear. But for Rose, who was convicted of homicide in the second degree, the ordeal started with his bail hearing. Navigating the bail system, he said, was a challenge.

“This was a time of anxiety, anticipation, going from court date to court date. You don’t know what’s going to happen,” Rose said. “You had to adjust quickly to problems.”

Before January 1, 2020, experiences like his were the norm in New York. People charged with a crime could pay bail and stay at home for the duration of their trial. If they couldn’t cough up the funds, they stayed in jail. Rose was just 19 years old at the time, and he was unable to make bail. His trial lasted for three years.

“When you’re inside, you have to wait. There’s a lot of not knowing what’s going on,” Rose, now 47, said. “If you have family, children, not knowing what’s going on as well, that’s another anxiety.”

The bail reform law that went into effect in New York earlier this year eliminates pretrial detention and cash bail for nearly all misdemeanor and nonviolent felony cases—an estimated 90 percent of arrests, according to the Vera Institute of Justice. The reform, which aimed to fix inequalities faced by accused men and women, has sent lasting reverberations through courthouses, fundamentally restructuring the state’s criminal justice system.

Another study by the Center for Court Innovation found that only 10 percent of the nearly 205,000 criminal cases arraigned in NYC in 2018 would have been eligible for cash bail under the new law.

Months after the reform was instituted, however, how the new system is working has proven to be less clear. Before the coronavirus crisis set in and brought the court system to a standstill, concerns over public safety and a surge in the number of repeat offenses led to calls for the law to be amended. In February, the New York State Senate majority proposed legislation that would still eliminate cash bail, but allow judges to consider the potential danger a criminal defendant could cause while deciding who will be jailed pretrial. Mark Bederow, a former Manhattan prosecutor and now private criminal defense attorney, argued that judges should still be able to use discretion to decide bail, rather than operating under a blanket law. Handcuffing judges, he said, wasn’t necessarily the answer.

The state senate’s proposal also provoked fierce response from activists, who view it as “regressive.”

In recent months, the COVID-19 pandemic has also begun to play a role in the debate.

The Center for Community Alternatives, a criminal justice advocacy group, released a statement citing that there are 330 New York seniors—who are part of the demographic most vulnerable to the virus—who would be in pretrial jail if not for bail reform. “It would be illogical and inhumane to roll back the bail reform law that drove these life-saving declines in unjust pretrial jailing,” the statement read.

According to data from New York City’s Board of Corrections, 52 incarcerated people, including convicted Hollywood mogul Harvey Weinstein, tested positive for the virus as of last week. Parole and corrections officers have also tested positive since the outbreak began.

In response, Gov. Andrew Cuomo has released more than 1,000 people from New York’s jails and prisons.

The concerns over the law notwithstanding, Bederow said that the law was enacted from a good place.

“The past law was not good,” he said. “There were injustices. You don’t want to have a system where access to financial resources is the only difference between jail and liberty.”

In theory, the rollback of cash bail was meant to combat an unequal justice system where people who were unable to afford bail had no option but to stay in jail. Gov.Cuomo, a proponent of the reform, said, “The blunt reality is that too often, if you can make bail, you are set free, and if you are too poor to make bail, you are punished.”

Rose, who has lived through that reality, agrees with the governor’s take. Being out of jail, he said, “allows you to get your life back together and work on your legal issues. A lot of people I know, they get locked in for drug possession, and that costs people a long time.”

Ivan Calaff, who had been incarcerated for 20 years for robbery and burglary, said the bail reform, although a step in the right direction, wasn’t the solution, however. Calaff, a researcher at Columbia University’s Center for Justice, argues that the pendulum hasn’t swung enough.

“I don’t think anyone with any degree of humanity and mercy, could stick a person in the cage because they can’t afford a bail,” he said. “They don’t understand what it’s like to be in a cage, and they don’t understand the impact that that has.”

The formerly incarcerated Calaff and Rose say that the focus should shift from bail to fixing the larger systemic issues, such as education and healthcare. These inadequacies put people in situations where they feel like they have no choice but to commit crimes.

“The idea is that if people commit crimes, they have to be bad people,” Calaff said. “That sort of takes the onus away from the systems that are failing—from healthcare, to education, to mental health services. There’s all these systems that are failing people and putting people in situations where they really feel like they have no choice. They don’t have a choice.”