New York lawmakers are poised to revamp the state's bail system in 2019, and while the circumstances are ripe for ending the state's cash-based system, eliminating unnecessary incarcerations will require examining where other reform-minded states may have gone wrong, according to a recent panel of experts and activists.
Members of the Nov. 8 panel at The Straus School in Manhattan agreed that, with Democrats once again in control of both chambers of the New York Legislature and the governor's office, bail is expected to be addressed in the coming legislative session, adding the state to a stream of other jurisdictions rethinking how criminal defendants should be handled before trial.
Those speakers included Assemblymember Dan Quart, who has previously proposed legislation to end cash bail, and New York City Council Member Keith Powers
, who chairs the council's criminal justice committee and who hosted the event. Reform efforts are in "a better place" after the recent election, Powers said.
"For a long time, we ignored [criminal justice reform] in campaigns and elections," and now it has become a priority, Powers said.
Advocates of bail reform in New York have long pointed to the way the state's bail system often leaves nonviolent offenders, many accused of misdemeanors, sitting in jail because they can't pay a relatively small bail amount. These people are essentially incarcerated for being poor, advocates argue. The issue also has outsized impact on people of color, with black and Latino people disproportionately likely to wind up staying in jail pending trial.
However, while the opportunity seems ripe for the state to take on bail policies, the question of what changes to make is not simple.
"Getting rid of cash bail alone is not going to get us a better or more fair system," said Insha Rahman, program director with the advocacy and research organization Vera Institute of Justice
She pointed to California, where lawmakers have voted to eliminate money bail and replace it with a new system that advocates believe might actually end up incarcerating more people awaiting trial. California passed a law in August that replaces money bail with a pretrial assessment system whose details are still being hammered out before it goes into effect in October 2019. Advocates have argued that the system, which includes a presumption for detention for certain crimes, makes it too easy for judges to simply detain people pretrial and does not guard against potential racial bias, among other concerns.
New York, Rahman said, should avoid falling into a similar trap.
How to do so, however, is not something experts universally agreed upon. Particularly thorny was the question of whether the state should begin using risk assessment tools — algorithms that use known risk factors to weigh the likelihood that a defendant will show up to court — as has been done in other places, including New Jersey.
"It would be remiss to throw away modern science," retired Chief Judge Jonathan Lippman said, arguing that judges should have the benefit of an objective, empirical analysis to factor into their decisions.
Others on the panel, however, questioned whether the tools really were objective. Rahman said she was not categorically opposed to risk assessment tools, "but I've never met one I like."
Often, she said, the tools use information that correlated not just with likelihood to skip out on a court date but also with poverty, such as not having a fixed address. They also often incorporated arrest statistics that suggest racial bias by police departments and used the biased numbers to make predictions about criminal behavior, she argued.
"We should all be concerned that this is the data building the tools," she said.
Julio Medina of re-entry assistance and advocacy organization Exodus Transitional Community contended that parole boards have at times ignored risk assessment analysis in favor of release, choosing to deny parole anyway. And like parole boards, judges were also often worried about taking political heat if they were perceived as being "soft on crime."
Relying on an algorithm to sway decision makers, he said, was not a good strategy.
Assemblymember Quart also worried about the implications of using this type of software at all. "The Legislature should not outsource its policy desires to an algorithm," he said. "I don't believe in that as a mode of government."
Panelists also expressed concern about the potential use of pretrial monitoring, especially electronic monitoring, as a replacement for detention.
Nicole Follmann of the Brooklyn Community Bail Fund said that her organization, which pays bail without conditions on behalf of indigent defendants, has found that even though the people it helps have been deemed unlikely to return to court without a financial incentive, 95 percent do. That shows, she argued, that courts don't have to "expand the net of surveillance" in order to get people to show up to court.
Courts could simply use letters, phone calls or texts to remind defendants of their court date, as the Bail Fund and other similar organizations do, she said.
Panelists also wrestled with the idea of allowing judges to keep a defendant behind bars if they deem them to be a risk for violence. New York does not allow judges to consider public safety when setting bail, but lawmakers may revisit the policy.
"My view is simple," said Judge Lippman. "If you're going to hurt someone, you should be in jail. If not, you should be at home with your family and your community."
The question of how to assess a defendant's potential for violence, however, had no easy solution.
"I don't trust our current court system to determine who is dangerous," Follmann said, noting the implicit biases at play in sentences and the justice system as a whole.
Rahman agreed. She suggested a system in which the risk of violence should only be considered if the charges included allegations of violence, and in which prosecutors must demonstrate a credible risk to a specific person — rather than a general risk to the community — in a special hearing before the judge could act on it.
"What looks dangerous in our culture ... is so infected with racism that we have to be so, so careful," she said.
--Editing by Brian Baresch.
Have a story idea for Access to Justice? Reach us at firstname.lastname@example.org.