New York has an opportunity this session to address the devastation of the state's current bail system by passing the Bail Elimination Act. This legislation, which both our organizations and many others support, would end money bail, vastly reduce the number of people incarcerated pretrial, and provide necessary due process safeguards against pretrial jailing.
The current system forces people to either pay, or stay locked up until their case is resolved — a process that can take years. That hurts poor people, who can't afford bail, and greases the wheels of mass incarceration. People who cannot afford to buy their freedom lose jobs, get evicted and have children taken from them.
Judges and prosecutors know that when people are incarcerated pretrial, they are far more likely to accept plea deals simply to gain their freedom. This leaves them with permanent records, exorbitant fines and probation conditions that exacerbate a cycle of poverty. In New York, rules that permit prosecutors to withhold evidence until the eve of trial, and delay trials for months or years, compound the problem. Nearly 70% of the more than 20,000 people in New York State's jails every day are there pretrial, largely because they cannot afford bail.
As we move to address this injustice, we cannot allow what happened in California to befall New York.
Last spring, California too was poised to enact meaningful reform that would've ended money bail while limiting the number of guilty pleas coerced by pretrial incarceration. Unfortunately, legislators drastically changed the bill days before its passage. Key lawmakers and various stakeholders met behind closed doors, completely rewriting the bill. The revised legislation, released publicly just days before the vote, was based off a proposal created by a committee of judges the prior year.
California's lawmakers accepted the judges' wish list for enhanced powers, including nearly unlimited discretion to lock people in jail pretrial without a meaningful hearing. Most of the groups that had initially supported the legislation opposed the new bill; it passed anyway.
Now the same scenario is threatening to emerge in New York. Recently, the Justice Task Force, a body composed primarily of law enforcement, prosecutors and former prosecutors — some now judges — released their recommendations on bail reform. Under this proposal, judges could continue to order bail or pretrial detention without real limits, forcing many people to plead guilty to avoid languishing in jail for months or years pretrial.Now the same scenario is threatening to emerge in New York. Recently, the Justice Task Force, a body composed primarily of law enforcement, prosecutors and former prosecutors — some now judges — released their recommendations on bail reform. Under this proposal, judges could continue to order bail or pretrial detention without real limits, forcing many people to plead guilty to avoid languishing in jail for months or years pretrial.
This report is far behind any of the current proposals in Albany and fails to address, or even acknowledge, the core components of meaningful change: the need to end jailing that discriminates along race and poverty lines, to vastly reduce the number of people incarcerated pretrial, and to ensure strong due-process protections.
Judges and prosecutors have long abused their discretion in imposing bail, locking up thousands of people who are presumed innocent under the false pretense that detention was required. The vast majority of people who have pretrial release show up for their court dates. A recent study in Philadelphia found that vastly increasing the number of people released pretrial did not result in an increase in people missing court dates or getting rearrested. Studies show that simple reminders via text, phone or email, significantly increase court appearance.
Pretrial incarceration affects tens of thousands of New Yorkers each year; the cost of perpetuating this unjust system affects us all. With California as a cautionary tale, we must not allow the judges and prosecutors who have helped create the current jail crisis to slow our momentum towards justice. Now is the time for New York to set the national standard and pass the Bail Elimination Act.