Making Democracy Work: Is the Bail System Fair?

By Lisa Scott

Bail is part of our justice system which aims to ensure that those accused of crimes appear in court to be held accountable. When a person is arrested and charged, the court sets a court date with a hearing or trial usually weeks or months away. Prior to bail reform, there were no standards and judges would do whatever they wanted on any charge to assess the person’s potential to flee and not return to court. Sometimes quantitative tools capable of measuring “risk” have been used, and these have proven to be biased.

If the person cannot pay the bail amount, they remain incarcerated until their case is resolved, either by settlement, hearing, trial, or dismissal. If they post bail, the money is not returned until the case is finalized – which can be months or in some cases years later (minus a $9 processing fee %).

There is an obvious but complex problem inherent in this system. People with good credit or access to funds can post their own bond and return home. People who have neither money nor credit are detained until their trial. For those who are at the foot of the totem, a simple arrest, guilty or not guilty, can destroy a life, or a family. If they had, say, a minimum-wage job, their incarceration will almost certainly lead to losing it. What happens to the rest of the family? What happens to the stability they may have had in their lives? The collateral damage of an arrest and even a relatively low but unaffordable bond can bring the house down. Average court costs can exceed $15,000.

The question we are asking is not whether the justice system should continue to use bail, but whether or not the bail system is being used wisely. In America, we are innocent until proven guilty, but the bail system can end up being incredibly punitive even before guilt is established in court.

The New York State Bail Reform Act of 2020 has brought some relief and created uniform standards. For most misdemeanors and non-violent crimes, the law now requires judges to release people under the least restrictive conditions necessary to reasonably guarantee the person will return to court. Previously, the court could impose cash bail for any offence. The reform codified non-cash and non-monetary bail conditions and provided a third option of unsecured or partially secured bail (a loan due if the charge does not appear).

The reform was amended in April 2020 to include more situations in which judges can impose cash bail. They will also have more leeway to set bail and other conditions for provisional release. It did not abolish bail, but drastically reduced the role of money and strengthened the rule of law in determining whether defendants will be freed or imprisoned pending trial.

The new law, however, came under attack in the 2021 midterm elections, particularly from candidates campaigning on a “law and order” platform. Using a handful of examples of bail abuse, some have attempted to make generalizations about the new bail rules that the data does not support. It’s important to remember that bail (in its legal design) has always been about making sure people get to court, not about punishing them before they’ve had their day in front of them. the tribunal.

So far, the results of bail reforms have been positive. Pre-covid datasets from state-level bail reforms in New Jersey, New Mexico and Kentucky, as well as reforms in 4 major cities and 5 counties, indicated a decrease of the provisional prison population, a decrease or stability in the rates of “new criminal activity” and no increase in recidivism. In New York, data during covid shows that just under 4% of those released pretrial under bail reform have been re-arrested for violent crimes.

This is a small percentage, but this figure is used both to support and criticize bail reform. As NYS Senator Julia Salazar of Brooklyn said, “It’s not really about facts. These are competing narratives about public safety” (City & State NY January 10, 2022). We must remember that bail reform saves lives and families and levels the playing field. The few cases of bail abuse are not enough to outweigh the benefits of these reforms. We support them every time we say the end of the oath of allegiance to “and Freedom and Justice for all”.

For more information:

–January 18, 2022 article by Steven B. Wasserman in the New York Law Journal

–Brennan Center Explanation of NYS Bail Reform Act at https://www.brennancenter.org/our-work/analysis-opinion/new-yorks-latest-bail-law-changes-explained

–True cost of incarceration at https://finesandfeesjusticecenter.org/articles/who-pays-true-cost-incarceration

Lisa Scott is president of the League of Women Voters of Suffolk County, a nonprofit, nonpartisan organization that promotes informed and active citizen participation in government and influences public policy through education and advocacy. For more information, visit https://my.lwv.org/new-york/suffolk-county or call 631-862-6860.