Opinion: Fear Prevailed in the Crusade to Undo New York’s Bail Reforms

Governor Andrew Cuomo correctly said of bail reform in January: “We need to respond to the facts but not the politics, we need to act on information and not hyperbole.” Two months later, in the midst of the coronavirus pandemic overrunning this city and state, and at the height of the resulting humanitarian crisis in jails and prisons statewide, Governor Cuomo ignored his own words and did the complete opposite, using the executive power over the budget to force a devastating rollback of bail reform. 

Here are some facts:

Fact: the reforms led to significant decreases in jail populations statewide. 

Fact: the reforms also led to less unfairness in the judicial system based on race and income status. 

Fact: accused persons were fulfilling their obligations to the court as they were before. 

Fact: the vast majority of people released without bail returned to court. 

Fact: more presumed-innocent New Yorkers were able to keep their jobs, apartments, and children. 

Sadly, here’s another fact: the same groups who opposed reform before the laws were enacted—dishonest politicians, law enforcement, prosecutors and the tabloid press—continued to shamelessly slander the laws after they took effect.

The press jumped on the rare instances where a person released from arraignments was re-arrested, and editorialized that bail reform was not working. Prosecutors pretended to be supporters of reform while advocating for increased judicial discretion and preventative detention. The NYPD, an organization with a track record for juking stats when it suits favorable political agendas, claimed that the laws caused increases in crime. Mayor Bill de Blasio parroted the NYPD’s talking points as he always does, and even attempted to shame public defenders for daring to question the NYPD’s stats. 

That arrests were down 17 percent and prosecutions down 20 percent citywide during the first two months of 2020 did not matter. Nobody wanted to hear from us Legal Aid attorneys when we said we were seeing numerous cases where cops were clearly overcharging our clients with serious crimes that did not happen.

No one bothered to question the sinister motives of prosecutors-turned-reformers, given that before the reforms they regularly requested bail on even low-level misdemeanor cases where the individual being accused had no criminal record, or where the evidence was extremely weak.

Nor did anyone talk about the unholy anti-reform alliance between law enforcement and white supremacist organizations like the Three Percenters. For these groups, and ultimately for Albany lawmakers, the facts did not matter. It was facts versus fear; and as usual, fear won.

What prevailed in New York were not the facts and the information; it was the politics and the hyperbole. The law enforcement lobby and state prosecutors have been determined to roll back the reforms since they were enacted. The tabloid press spun the reforms as being a victory for criminals, when instead, it was a win for due process, fundamental fairness, racial justice, and the constitutions of this state and the nation. Republicans, dog whistle in hand, used the reforms to paint the Democrats who passed them as soft on crime. Democrats in Albany, particularly in the Senate, began wavering within days of the new laws taking effect and were ready to undo them by mid-February. It was only a matter of time before Cuomo set his intentions on altering the new laws. As a result, bail reform was killed before it even had a real chance to work.

Among other things, this new legislation is an insult to the memory of Kalief Browder. Remember him? Albany clearly forgot about him, but us members of the Action Committee at Legal Aid’s Brooklyn Trial Office did not. Kalief Browder was our rallying cry for reform. Kalief was arrested for a crime he did not commit and wound up sitting on Rikers Island for three years awaiting a trial that never came. After over thirty court appearances, Kalief’s case was finally dismissed, and he was released. His detention at Rikers, however, had taken its toll: Kalief struggled with severe mental illness stemming from his time on Rikers Island, which led him to commit suicide in June 2015. Lawmakers in support of reform swore that what happened to Kalief Browder would not be allowed to happen again. 

If the reforms applied back in 2010 when Kalief Browder had been arrested, he would have been mandatorily released. However, under the new amendments to the law, Kalief Browder would have been eligible for bail, the prosecutor would have again asked for bail, and bail would have been set. Under the law that just passed, Kalief’s story ends no differently. This is not hyperbole; this is a fact. If this point does not drive home how shameful and harmful these rollbacks are, we don’t know what will.

Up until January 2020, thousands of people across New York State were sitting in jail on low-level misdemeanors and nonviolent felonies, solely because they could not buy their liberty—in other words, post bail. This led to accused persons receiving worse plea offers, being subjected to longer jail sentences, and entering guilty pleas to crimes not because they were factually guilty, but solely for the sake of freedom. Legally innocent persons were nonetheless subjected to the dehumanizing and violent experience of being incarcerated in New York jails. Racial disparities existed and persisted in bail practices across the state. In New York City alone, over 370 people have died in jail since 2001; most of them were legally presumed innocent, simply waiting for their day in court. And taxpayers across this state paid premiums to keep this system going: in New York City, the cost of detaining one person in jail last year was over $337,000, setting a new record.

Last April, Cuomo and the legislature recognized that this was a problem worth solving, and they enacted new laws to try and solve it. This April, they decided that these injustices were no longer a problem, and that the lives that will be impacted by these rollbacks do not matter. Because this state has chosen to yield to politics and hyperbole instead of the facts and information, more poor people and people of color will be victims of an unjust bail system that did not even have to be. It would be amusing to see how long it takes for New York to get it right again if the consequences were not so tragic.

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Zamir Ben-Dan, Rachel Wagner and Sarah Young are staff attorneys and Action Committee members with the Brooklyn Trial Office, Criminal Defense Practice at The Legal Aid Society.