There has been a growing push in the United States to eliminate cash bail. The reasons behind it are varied depending on whom you ask. People on the right will say its Democrats being soft on crime while proponents on the left claim it’s a step towards eliminating racial economic inequality. There are many across the aisle that can see it both ways.
The purpose of bail is simple. When used as a noun it is defined as the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court. When people cannot afford bail they are required to remain imprisoned until they have their day in court. That inability to pay, which leads to lengthy prison stays before a ruling is made on a person’s innocence or guilt is at the heart of bail reform.
New York State passed a criminal bail reform, which took effect at the beginning of this year. Governor Andrew Cuomo (D) released a statement last year expressing his support for bail reform and said he would not sign a state budget that did not include legislation that addressed it. Some might be wondering why he would tie bail reform legislation to a state budget. The simple answer is that all roads lead to Albany including money that goes back to local districts. If those elected officials want to receive those funds they better get on board with the Governor’s progressive agenda. Seeing as how the state assembly is overwhelmingly Democrat, getting legislation approved is all but guaranteed. Here is a portion of the Governor’s reasoning behind the push to eliminate cash bail.
The presumption of innocence is one of the cornerstones of the criminal justice system in the United States. This bedrock concept has been ratified by the Supreme Court; it is codified in the UN’s Universal Declaration of Human Rights. Even if your legal training is limited to watching cop shows on TV, you can quote this principle: a person is innocent until proven guilty.
And yet, three-quarters of the people being held in New York City jails are awaiting trial. A similar condition exists in jails across the state. How is this possible? It begins with the failure of our bail system.
Most people who are arrested in New York are given a trial date and released. But for others, including many who are charged with non-violent crimes, their freedom comes down to money. If they have it, they can post bail and get out. If not, they are jailed awaiting trial. And we know that the overwhelming number of people who can’t afford bail are black and Latino, making this an issue of racial justice.
A state review conducted last year showed that in 66% of cases in New York City, and in 64% of cases outside of New York, people were in jail five days after bail was set. That means 45,500 people spent time in jail in New York last year not because they have been proven guilty of a crime, or because they posed a risk to someone else, or because they might run, but because they were poor.
This would be bad enough if people were locked up for just a day or two. All too often, the waiting period before trial can stretch into months and years. Although state law requires that people charged with misdemeanors go to trial within 90 days and felonies within 180 days, the law is frequently ignored; in New York City, the average misdemeanor takes two years to go to trial.
Finally, we must reform the discovery process. Today, New York is one of only 10 states where prosecutors can withhold basic evidence like police reports and witness statements from defendants’ lawyers until the day of the trial. Defendants have a constitutional right to counsel, but that’s meaningless if counsel has no time to prepare a defense. We must expand discovery and require earlier disclosure of evidence.
The Governor’s impassioned plea for cash bail reform is drenched in identity politics. This is evidenced when he said the overwhelming number of people who can’t afford bail are black and Latino, making this an issue of racial justice. What he’s inferring is that blacks and Hispanics that are charged with a crime are poor. Because they are poor, imposing bail to ensure they return for a court date means the criminal justice system is racist. Identity politics is the hallmark of the Democratic Party. Rather than treat everyone equally and as Americans first, identity politics promotes a victim mentality, which revolves around class and race warfare. By phrasing bail reform under the umbrella of racial justice, Cuomo essentially took the blame away from the accused criminal and made them a victim of a system that is allegedly rigged against the poor (minorities) and for the wealthy.
Identity politics aside, the push for a speedy trial has merit. Unless someone confesses to a crime, even acts that are caught on camera can take months and years before they go to trial. Cuomo himself stated that there is already legislation on the books to speed up the process that is frequently ignored. If existing legislation is ignored, what will be the consequences of ignoring new legislation?
As with all legislation that has public opposition, the loudest voices are those who stand to lose money. Bail bondsmen and those who provide surety bonds stand to lose the majority of their clientele. If no bail is required and people are released with only a promise to show up for court, the bond industry will see many employers close their doors. Local courts also have a stake in keeping the status quo.
Rebecca McCray wrote an article about the topic of bail reform in 2017 on the site TheAppeal.org. In her post titled ‘Ditching the bondsman is only part of the battle for bail reform,’ Rebecca discusses the challenges that states face with inequity when it comes to cash bail after eliminating commercial bond outlets.
“What we have is a court system that is itself profiting off of the bail program, which creates a perverse incentive for the government,” says Sharlyn Grace, co-founder of the Chicago Community Bond Fund, which pays bond for those in Cook County jail who are unable to bail themselves out.
While Illinois made bounty hunting illegal in 1963, Grace says “deposit bonds” paid to the court to bail someone out of jail still echo the commercial system. For example, if a judge sets bail at $100,000, a defendant must pay 10 percent to the court to get out of jail. Of that ten percent, the court clerk keeps $1,000 whether or not the person shows up for their court hearing. In states where they are allowed to operate, bail bondsmen do the same thing.
“There’s no large insurance companies in the background making profits, but the fact is that the court is deriving part of its budget from collecting money from people pretrial, and people are forced to pay or sit in jail,” Grace tells In Justice Today.
Opponents of the push for cash bail reform believe bail is necessary to ensure that defendants show up for court. They believe skin color is irrelevant and having a significant bail amount provides greater assurance that someone will not skip their trial. They also believe that judges should have the final say on whether or not someone qualifies for bail based on the severity of the crime and whether or not the judge feels they are a danger to the community. The cash bail reform law that took effect this year in NY strips judges of that discretionary tool.
The following are two examples of where bail has and has not been set. The first involves an African American woman, Tiffany Harris, who lives in NY. This past December she was arrested for assaulting three Jewish people in a case of apparent anti-Semitism. Due to the new criminal bail reform that was due to take place, the judge released her on her own recognizance. Bail was not set due to pressure from Albany to begin the practice of not assessing bail for a multitude of crimes including “non-violent offenses.” The following day she was arrested for assaulting another person and released shortly after once again without bail.
The second example is of someone on the opposite economic spectrum. Former Nissan CEO Carlos Ghosn was free on $9 million bail in Japan. He was charged with financial mismanagement in November 2018 and was facing multiple years in prison if convicted. Considered a flight risk, Ghosn surrendered three of his four passports and was placed under house arrest with around the clock surveillance. Fearing that he would be subject to a rigged trial Ghosn was able to sneak onto a private plane and flea the country to his native Lebanon where there are no extradition treaties with Japan. In this case, the loss of millions of dollars and international arrest warrant proved little deterrence for a person of financial means who had no interest in sticking around for his trial.
The irony of those two situations makes pleading the case for or against bail reform all the more difficult. The first example involved a black woman who admitted to assaulting three Jewish people because of their religion. She was released without bail and assaulted someone else the following day. Had she been required to post bail she may or may not have been free to assault someone else. With that being said, it’s unclear if having bail imposed would have been a deterrent to that assault or motivation to show up for her court date.
The second example involved the conditional release of a wealthy individual who posted millions of dollars in bail and was subject to house arrest. What would normally be a significant loss of money for not showing up to trial proved insignificant for a man who felt his freedom was all but guaranteed to be taken away. For him, no amount of bail could have stopped him from fleeing the country.
What’s interesting in these two extreme examples of bail and no bail is the nature of the crimes involved. Ghosn was charged with financial mismanagement. Harris was charged with physical assault. Both are criminal in nature. The progressive liberal lawmakers and media have labeled Harris’ assault charge as ‘non-violent’. For her act of non-violent assault, she was deemed to not be a flight risk and therefore not charged bail. Never mind that her propensity for violence is an obvious danger to the community. So much so that Cuomo now wants to enact hate crime legislation for anyone who assaults individuals based on their religion and label them as domestic terrorists. Ghosn committed a financial crime that was actually non-violent. Because he was wealthy and ultimately did flee the country his bail was set at an amount that proved to be unsuccessful in deterring him from fleeing. In both cases, extreme bail amounts and lack thereof had little to no impact on criminal justice reform. Harris still went on to immediately assault someone else and Ghosn fled the country albeit a little poorer. Both are not sitting in prisons though both should be if found guilty in a court of law. What criminal bail reform boils down to is should someone remain in prison until his or her day in court. If everyone is innocent until proven guilty the concept of bail is irrelevant and should be replaced with judicial discretion. That way flight risks and danger to the community will have equal weight on the scales of justice.