New York’s bail law lets violent criminals back on the street

The original concept of cash bail was not about paying for one’s freedom so much as it was a promised surety from a person in the community who ensured that the accused would return to stand trial. If the accused did not return, that surety amount, or bond, would be paid to the victim. As people moved and communities fractured, cash bail took the place of the personal voucher. When people can’t afford bail, bail bondsmen pony up the dough. If a person can’t obtain the services of a bondsman, they sit in jail awaiting trial. This has been a serious problem.

Whether the accused is innocent or guilty, being stuck in jail awaiting trial is basically a front-row seat to watching your life fall apart. If you can’t leave jail, you can’t work, can’t pay rent, or bills, or care for your family. Being locked up when you’re guilty is bad enough, but when it’s a false arrest, it’s even more tragic. This was true in the case of Kaleif Browder, who was accused of stealing a backpack and then died in jail on New York City’s Rikers Island after three years of awaiting trial, all for lack of $3,000 bail. He maintained his innocence, and charges were dropped.

The reform of the cash bail laws were long overdue, but instead of changing the existing laws, they were eliminated entirely. New York State opted to remove cash bail entirely. Accused criminals are basically on a catch and release program, free on their own recognizance. New Yorkers United for Justice advocated for these changes, but while the program they proposed contained an extensive criminal reform, from pretrial through release after time served, only the cash bail portion was enacted.

It was a sense of justice that led to the reform of the bail system in the City, to prevent poor, non-violent offenders from languishing in jail waiting for trial. But as the rules take effect for 2020, even violent offenders, like Harris, are being set free. A man accused of manslaughter has also been released. Without bail, judges have no way to hold offenders, their hands been tied.

Additionally, many of those awaiting trial in New York state are being instantly released as the new law comes into effect. In essence, everyone who is arrested for mostly non-violent crimes, including some felonies, will await trial on the honour system. While many criminals who engage in behaviour such as stalking, misdemeanour assault, burglary, drug crimes, not super serious robbery and arson are probably incredibly honourable, and will definitely show up for their trials, there’s a good chance that some of these criminals will not.

The elimination of cash bail leaves no middle-ground for repeat offenders such as Harris, but would have protected Browder from dying for want of $3,000. Removing the ability of judges to make, well, judgements in even serious cases is too much of a correction for the troubled cash bail system. Allowing people to continue their lives while awaiting trial makes sense in many cases, but judges must have some discretion when it comes to keeping the public safe from repeat offenders.

Jails and prisons are overcrowded in New York and across the US, and there should be more options for law enforcement to deal with non-violent offenders. People should not be endlessly stuck in jail awaiting trial, especially when the trial system is slow, unwieldy, and backlogged. But cash bail has been dismissed without any real means to ensure that the public is safe from repeat offenders. Harris was finally held for a psychiatric evaluation, but it took her committing three separate attacks before the courts decided that maybe she was a public risk.

Cash bail is too punishing for the poor who are arrested. But eliminating it altogether needs to be part of a vast reform of the criminal justice system. Discarding bail on its own, without fail-safes, provisions for the judges to make determinations about flight risk and the severity of the crimes committed puts the public at risk, as well as the individual who is could be in danger of committing additional crimes.