There’s been a major development in bail reform that has nationwide implications—and it’s being led by New York City district attorneys.
The district attorneys for Manhattan and Brooklyn have announced that their offices will no longer seek bail for most non-felony cases, allowing defendants to be released on their own recognizance rather than sit in jail or fork over big sums of cash while awaiting trial for crimes deemed less serious.
The change could save New Yorkers millions of dollars and hundreds of thousands of days of jail time, and follows a city, state and nationwide trend towards reforming the system of pre-trial justice.
This move puts New York City on the cutting edge when it comes to bail reform. So far, the only state to have adopted such a measure is New Jersey, though others may soon follow.
New Jersey made a similar move in 2016, and state legislatures in Missouri, Ohio, Alabama, California and Maryland are expected to debate legislation in early 2018 that would do the same. A bipartisan group of US senators have also discussed legislation to outlaw cash bail nationwide, but it has not gained much traction.
For context, the effect of moving toward release on recognizance in New York City alone is enormous.
Some 40,000 New Yorkers could avoid a cumulative 680,000 days in jail annually, waiting for trial or save $40m in bail owed to buy their temporary freedom.
Of course, jail isn’t free for the state or the person incarcerated, so the savings extend to more than just those who’d otherwise be subject to jail time in lieu of bail.
Bail, as practiced today, discriminates against those living in poverty; when someone can’t pay, the default is imprisonment. It’s also constitutionally suspect, at least in those circumstances. That’s why bail reform attracts sponsors ranging from Democratic Sen. Kamala Harris to Republican Rand Paul.
Our justice system was designed with a promise: to treat all people equally. Yet that doesn’t happen for many of the 450,000 Americans who sit in jail today awaiting trial because they cannot afford to pay bail.
Whether someone stays in jail or not is far too often determined by wealth or social connections, even though just a few days behind bars can cost people their job, home, custody of their children — or their life.
Of course, the senators’ allusion to “social connections” is just a euphemistic way of referring to the relative advantages and disadvantages attached to race and ethnicity.
Excessive bail disproportionately harms people from low-income communities and communities of color. The Supreme Court ruled in Bearden v. Georgia in 1983 that the Constitution prohibits “punishing a person for his poverty,” but that’s exactly what this system does. Nine out of 10 defendants who are detained cannot afford to post bail, which can exceed $20,000 even for minor crimes like stealing $105 in clothing.
Meanwhile, black and Latino defendants are more likely to be detained before trial and less likely to be able to post bail compared with similarly situated white defendants. In fact, black and Latino men respectively pay 35 percent and 19 percent higher bail than white men.
The piece that everyone, no matter their capacity for compassion, should unite around: The obscenity that is wasting dollars detaining defendants who either don’t need detaining or will actually become less likely to show up in court after being detained.
This isn’t just unjust. It also wastes taxpayer dollars. People awaiting trial account for 95 percent of the growth in the jail population from 2000 to 2014, and it costs roughly $38 million every day to imprison these largely nonviolent defendants. That adds up to $14 billion a year.
Bail is supposed to ensure that the accused appear at trial and don’t commit other offenses in the meantime. But research has shown that low-risk defendants who are detained more than 24 hours and then released are actually less likely to show up in court than those who are detained less than a day.
Despite Harris and Paul, federal support for bail reform is lacking. Fortunately, this high-profile shift in New York City should set precedent, and establish results, that will encourage other cities and even states to pursue the same route.