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Forfeiting bail

New laws overhaul New York's flawed pretrial detention and release system.

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Bail by its very nature is inequitable. People who have the cash to post it are able to buy their freedom — even if it's temporary — while people of limited means have to stay in jail.

Examples of the disparity aren't hard to find. On July 18, a man was booked into the Monroe County jail on $500 bail or $1,000 bond on a single misdemeanor assault charge. He was held in the jail until July 24. Some people, charged with relatively minor crimes, are held for more than a week on as little as $250 bail.

Critics of money bail have long argued that it inflicts lasting harm on people and has been especially damaging to people of color, who face disparities across the justice system. You're supposed to be innocent until proven guilty, and the Fifth Amendment says no person should be "deprived of life, liberty, or property, without due process of law." But the longer people sit in jail without being found guilty of anything, the more at risk they are of losing jobs, housing, and custody of their children.

"Your whole life is disrupted," says Nicole Triplett, policy counsel for New York Civil Liberties Union, one of many organizations that have pushed for the end of cash bail in New York.

Come the start of 2020, however, things will be much different. This past legislature session, state lawmakers passed major reforms that will end the use of cash bail for many lower-level charges and limit its use for more serious ones. The laws instead favor other options, such as supervised release, that aren't based on money. If everything works as it's supposed to, the state will see a substantial decrease in the number of people who spend time in jail before they plead to or are found guilty of a criminal offense. 

The Vera Institute of Justice put out a report in July saying that based on conservative estimates, New York can expect at least a 40 percent reduction in the state's pretrial jail population. In New Jersey, the report says, bail reform decreased the state's pretrial jail population by 30.4 percent.

The overhaul is a major win for people who are accused of crimes, not all of whom would be convicted. It's also a huge victory for the reform groups, civil liberties organizations, defense attorneys, and activists who have spent years pushing for the state to replace cash bail with something fairer and more humane. Among the activists were people who spent time in jail because they couldn't make bail.

"It's probably the most comprehensive, bold, and progressive, historic package of bail legislation passed in this country," says Darren Mack, director of community engagement and advocacy for JustLeadershipUSA. The organization initiated the #FREEnewyork campaign to push for pretrial reforms including elimination of money bail.

"Do I think that this is an improvement over the existing bail statutes? Absolutely," says Monroe County Public Defender Tim Donaher. "Do I think that we should not be incarcerating people pre-

Monroe County Public Defender Tim Donaher says new state laws around pretrial release and detention are an improvement over existing bail laws. - PHOTO BY JACOB WALSH
  • PHOTO BY JACOB WALSH
  • Monroe County Public Defender Tim Donaher says new state laws around pretrial release and detention are an improvement over existing bail laws.

trial that are accused of lower-level offenses? Absolutely. And will this accomplish that? Yes."

In a late 2018 report, the New York Civil Liberties Union provided a snapshot of how money bail was affecting New Yorkers. It collected data from eight counties for the years 2010 to 2014 and used it to suss out how many people were held in jail on bail, how long they were held in custody, and how much bail they were held on.

During those five years, more than 1,900 people spent a week or more in Monroe County jail because they couldn't afford their bail of $250 or less, says the report. More than 4,700 people spent over a week in jail because they couldn't afford their bail of $500 or less. In general, the higher a judge sets bail, the less likely people are to post it and gain release before their trials.

Most of the people held on bail in Monroe County had a misdemeanor as their most serious charge, says the NYCLU report. A misdemeanor charge carries a maximum sentence of one year in jail. A smaller number of people were charged with nothing more serious than a violation.

Under the new laws, which are complex, many of those defendants would likely receive some sort of pretrial release that's not based around money. 

Police will be required to issue appearance tickets to all defendants charged with violations, as well as those charged with most misdemeanors (sex offenses and domestic violence-related charges are exceptions) and the lowest-level felonies. In other words, those defendants won't be taken into custody and held in jail until a judge can arraign them, though if they fail to show up to court when they're supposed to a judge can issue a warrant for police to take them into custody. Police can issue appearance tickets on these charges now, but advocates have argued that they don't do it often enough.

When defendants are charged with more serious crimes, police can still arrest them and take them into custody prior to arraignment. They can also take people into custody if a charge is based on an incident of domestic violence, or if the defendant appears to need immediate medical or mental health care.

ILLUSTRATION BY JACOB WALSH
  • ILLUSTRATION BY JACOB WALSH

The purpose of bail in New York is to ensure that defendants return for future appearances, and that's all judges are supposed to consider when they set bail. The approach is unique to New York.

"We don't have preventative detention," Donaher says. "This is not a public safety issue. This is a 'what will ensure a return to court' issue."

Under the new law, the charges against people will determine how judges proceed with arraignments. Judges will no longer be able to set bail for any misdemeanors with a couple of exceptions: sex offenses and a specific domestic violence charge where a person is accused of violating a stay-away order of protection. 

Instead, judges will go through a multi-step process to determine the release conditions that are appropriate for each defendant. Those conditions, none of which will be based on money, could include a simple promise to return for the next date — technically known as releasing defendants on their own recognizance — or some sort of supervised release. Under limited circumstances, a judge will be able to order electronic monitoring of defendants, though some reform advocates see that option as too intrusive and stigmatizing.

"We're hoping that the least restrictive conditions will always be preferred," says NYCLU's Triplett.

Similarly, the laws say judges should favor releasing defendants charged with non-violent felonies on conditions that aren't based on money. Again, there are exceptions where judges can set bail, such as sex offense or witness tampering charges.

The news laws also specify a long list of the most serious charges — "qualifying offenses," as they're called — that allow judges to release defendants on stricter conditions, which still aren't based on money. If necessary, judges can set bail for these defendants or order them held without bail.

That list includes violent felonies, sex offenses, and charges related to terrorism, labor trafficking, kidnapping, patronizing a prostitute, and domestic violence.

The new law also specifies that in cases where judges set bail, they're supposed to take into account the defendant's ability to pay.

Monroe County Undersheriff Korey Brown says some of the bail reforms are good.

"I certainly don't believe that someone should be in jail just because they're poor," Brown says. "If you can pay $250 in bail out of your pocket and someone else can't, if you do the same crime you should have the same consequences. I'm glad about that part of bail reform. I'm glad that it'll even the playing field a little more."

Undersheriff Korey Brown says he's concerned about parts of the new bail laws that require police officers to issue appearance tickets for many low-level offenses. - PHOTO BY JACOB WALSH
  • PHOTO BY JACOB WALSH
  • Undersheriff Korey Brown says he's concerned about parts of the new bail laws that require police officers to issue appearance tickets for many low-level offenses.

But he also has concerns about some provisions of the new laws, such as the ones requiring law enforcement officers to issue appearance tickets for some charges. He says police could end up in situations where they charge someone with a history of similar behavior, such as stealing from cars, and they'd have to release the person immediately, he says. The person could go right back to what they were doing, such as stealing from cars, he says.

"I just think that they really should have done something for repeat, persistent violators," Brown says. "And they didn't really look at persistent violators in this."

He also worries about how the changes could affect victims in domestic violence cases. Though officers can detain defendants in domestic incidents, judges may have to release them in a matter of hours, Brown says. And that may not give victims enough time to get an order of protection, he says.

Brown is also concerned that the new laws could lead to an increase in missed court dates and, subsequently, a heavier warrant workload for deputies.

"These obviously are all predictions," Brown says. "We don't know for sure."

Donaher and Craig McNair, the executive director of the Monroe County Bar Association's Pre-Trial Services Corporation, have their own concerns. The state didn't designate any extra funding for agencies like the Pre-Trial Service Corporation, which provides supervision for approximately 5,000 defendants on pretrial release. 

"The concern is that there could be increased use of intensive supervision or electronic monitoring," McNair says, "and if that's true then it just takes more resources or taxes your current resources."

Pre-Trial Services also provides court date notifications to the defendants it works with, which it does through text messages, emails, phone calls, and the mail. The state's Office of Court Administration will likely tap Pre-Trial Services to provide notifications to all defendants in Monroe County, McNair says. The agency estimates it'll handle 130,000 to 150,000 court dates a year, he says.

"Your ultimate goal here is to make sure if people are not in custody that they are returning to court and to make sure that you're providing public safety," McNair says. "You don't want to shortchange any resources for monitoring, supervision, notification."

Just Leadership USA's Mack offers a similar perspective. There will be a huge savings from not holding people before their trials, and that money should be reinvested into community services, he says. And that means directing funding not just to pretrial supervision agencies, but to local, grassroots social services organizations, he says.

ILLUSTRATION BY JACOB WALSH
  • ILLUSTRATION BY JACOB WALSH

The benefits of bail reform will be significant, though some of the anticipated positive effects haven't received much attention. And it's not entirely clear how many people will benefit, since it's hard to get the data to calculate those numbers.

Some projections say that 90 percent of people charged with crimes will receive some form of pretrial release other than bail. Those numbers are based on state Department of Criminal Justice Services data showing that the most serious criminal charges account for roughly 10 percent of cases. But Triplett says the figure may not be reliable; she hasn't used it for that reason.

Monroe County Jail Bureau staff compile daily snapshots of the jail's population. From what they've seen, they expect the daily population to decrease by 10 to 15 people, says Superintendent Matthew VanDuzee.

Bail has played a big role in further criminalizing poor people and trapping them in poverty, says Iman Abid, executive director of NYCLU's Genesee Valley Chapter. And poverty has been a continuing problem in the Rochester region, particularly for black and brown families, she says.

Iman Abid, director of New York Civil Liberties Union's Genesee Valley chapter, says bail reform goes hand-in-hand with eradicating poverty. - FILE PHOTO
  • FILE PHOTO
  • Iman Abid, director of New York Civil Liberties Union's Genesee Valley chapter, says bail reform goes hand-in-hand with eradicating poverty.

"I'm hoping that any advocate who decides they want to take a position on eradicating poverty also takes a position on reforming the bail system," Abid says. "I think those things go hand in hand and they're incredibly important."

The longer unconvicted people stay in jail, the more risk they have of losing their jobs, their homes, or custody of their children. Statistically, the likelihood that they'll be convicted goes up, as does the likelihood that they'll receive a longer sentence.

Many people who can't afford bail eventually take plea deals just to get out of jail, even if they're innocent or the case against them isn't strong. And while people can speed up their release through pleas, they leave with a record that can hurt their ability to get certain jobs or housing.

Donaher, Triplett, Mack, and others say the reforms will disrupt that dynamic. Donaher says defense attorneys will be better able to work with their clients on challenging charges, since it's easier to meet with people who aren't in jail.

"Some people would say in some circumstances it's almost impossible to exercise your rights pretrial," NYCLU's Triplett says. "And that's the right to be able to be presumed innocent until proven guilty. That's the right to have meaningful opportunity to be heard, to contest a charge, and to confront any charges that are against you."

Monroe County Jail Superintendent Matthew VanDuzee says the state bail reform laws will be helpful to some of the programs the Sheriff's Office operates in the jail. - PHOTO BY JACOB WALSH
  • PHOTO BY JACOB WALSH
  • Monroe County Jail Superintendent Matthew VanDuzee says the state bail reform laws will be helpful to some of the programs the Sheriff's Office operates in the jail.

Brown and VanDuzee from the Monroe County Sheriff's Office say bail reform will benefit some jail programs as well. Sheriff Todd Baxter has emphasized programs that help people transition back into the community, such as the medication-assisted treatment unit for inmates with opioid addictions, Brown says.

When someone comes in on bail, jail staff don't know how long they'll have to work with them, Brown and VanDuzee say. And when someone is held in jail for a few months, that time gets applied to their sentence, which means they may not spend much longer in the jail after the case is resolved.

The staff have better opportunities to work with sentenced inmates "because we know their out date" and can develop a services plan around it, Brown says. And the hope is that those people will reenter the community, "do well and never come back," he says.

"Because that's our goal, right," Brown says. "When people enter our jail, we never want them to come back."

This article has been corrected to fix two typos that changed the meaning of sentences.