Cash bail reform stirs debate between liberties and safety

Politics

In this photo taken Thursday, Jan. 31, 2019, Harris County Sheriff’s Office Major Greg Summerlin talks about a courtroom inside the county’s joint processing center, where individuals are brought after being arrested by Houston area law enforcement agencies. Under a consent decree awaiting final approval by a federal judge, most individuals arrested on misdemeanors will be processed out of the center and be freed on personal bonds that require no money be paid instead of being taken to the county jail. (AP Photo/Juan Lozano)

(NewsNation) — Upwards of 400,000 Americans are currently held in what is called pretrial detention after their arrest.

In many of these cases, people in pretrial detention are offered the chance to pay bail. The purpose of cash bail is to provide a kind of guarantee that defendants will return to court for their trial, but this arrangement can also make it difficult for lower-income people to come up with the sums required to win their freedom.

That was the case for Kalief Browder, a teenager from the Bronx borough of New York City who was arrested in 2010 for allegedly stealing a backpack. His family couldn’t come with the $3,000 needed for bail; after three years in the city’s Rikers jail that included some time spent in solitary confinement, prosecutors dropped charges. Browder later took his own life.

“Kalief Browder’s story really was the embodiment of what advocates had been saying for many years and it just really made it real for the general public, who may not have any real interaction with the criminal legal system,” said Jullian Harris-Calvin, director of the Greater Justice New York at the Vera Institute, a nonprofit that advocates for criminal justice reform

The story helped fuel bail reforms across the country. Although the nature of the reforms varies from place to place, all of them are intended to reduce reliance on cash bail. But critics have warned that these laws could make communities less safe.

In 2019, New York’s legislature passed a reform that eliminated cash bail and pretrial detention for most misdemeanors and nonviolent felonies.

The state’s bail reform law has since been the topic of heated debate, as civil liberties advocates have defended the new status quo while critics have called for changes.

Advocates for the state’s bail reform law say it has helped create a more equitable justice system.

“It was to make it so that your wealth does not determine your freedom,” Harris-Calvin said.

She noted that the jail population statewide has decreased by around 40% after bail reform.

Harris-Calvin and other reformers point to statistics they say show that the bail reform law isn’t leading to a decline in public safety. They note, for instance, that only 2% of around 100,000 cases related to bail reform between June 2020 and July 2021 led to a rearrest because of a violent felony. In New York City, around 99% of people awaiting trial in any given month are not rearrested for a violent felony.

Rafael Mangual, the head of research for the Policing and Public Safety Initiative at the right-leaning Manhattan Institute, argues those statistics can be misleading.

“You wouldn’t expect the entire pretrial population to reoffend,” he said.

Mangual pointed to data showing that in New York, those out on supervised release are rearrested at a higher rate when both felonies and misdemeanors are factored in at 41%. Supervised release includes those freed under conditions like wearing an ankle monitor.

Although he’s not an opponent of all bail reform, Mangual believes that New York’s judges should be given the discretion to determine a defendant’s dangerousness and order them held, something all 49 other states allow but New York didn’t allow even before bail reform. New York City Mayor Eric Adams has a similar critique. That’s a nonstarter for Harris-Calvin.

“Simply adding a dangerousness calculation…would not benefit public safety but open up more people to being incarcerated pre-trial,” Harris-Calvin said.

Hundreds of miles away in Harris County, Texas — where Houston is located — authorities have been conducting their own bail reforms since 2019, the result of a consent decree imposed following a civil rights lawsuit. The reforms ended cash bail for most misdemeanor cases and required defense attorneys at bail hearings.

Brandon L. Garrett, a law professor at Duke University, was a part of a team that was assigned by the courts to monitor the reforms.

“In general the outcomes have been really positive in terms of public safety and offending and reoffending,” Garrett said.

The most recent monitoring report found that the rate of people who were arrested for misdemeanors who later had new charges filed against them within one year of their initial arrest stayed nearly constant between 2015 and 2021.

Garrett added that some of those reoffense cases were incidents where those accused offenders were offered cash bail and were able to pay it.

“A judge may not know that a person can borrow $20,000 from their cousin. It’s actually challenging for a judge to use cash bail to detain someone because they may not know what rate a bail bonds person will charge or what resources a person may have,” he said. “And so in some of those situations, a judge thinks they’re imposing bail conditions that will result in a person being detained and a person readily pays bail.”

Following the reform, racial disparities in pretrial detention have mostly been eliminated, Garrett also noted.

It should be noted that Houston’s bail reform covers only misdemeanors, meaning it doesn’t go as far as New York’s. Still, critics of bail reform in Harris County are seeking to undo the bail changes, which they think contributed to a spike in violent crime.

Back in New York, while Harris-Calvin remains a staunch advocate of bail reform in her state, she concedes that the law is imperfect.

“We changed the bail law but we did not invest in the kind of services and supports that people need when they are in the pretrial process,” she said, adding that the state would be seeing better results than now if it did so.

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