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Fair or dangerous? Days after ending cash bail, New York has second thoughts

"Bail reform is well meaning, but there are unintended consequences," a prosecutor said.
Image: Prisoner with handcuffs in cell
The movement to eliminate bail aims to make the system fairer for poor people, who are far more likely to get stuck in jail while awaiting trial. LightFieldStudios / Getty Images

On Jan. 1, a landmark New York law curtailing the use of cash bail went into effect, signaling a leap in a nationwide movement to reduce the number of people held in jails.

But after less than a week under the new system, elected officials are already having second thoughts, rattled by stories of suspects' being set free and committing new crimes ─ including that of a woman accused of an anti-Semitic attack in New York City.

The backlash, led by conservative lawmakers and law enforcement authorities, is sweeping up some Democrats who pushed for the law, including Gov. Andrew Cuomo, who said Monday that it remains "a work in progress."

The shift shows that politicians are still wary of appearing soft on crime, even as the country has become more open to changing its criminal justice system by electing reform-minded prosecutors, easing sentencing laws and eliminating policies that discriminate against the poor. As the latest state to struggle over revamping its bail laws, New York may now become a lesson for others considering similar changes.

"This is, in some ways, the Willie Horton effect playing out over and over again, including in our contemporary progressive politics," said Kellen Funk, an associate professor at Columbia Law School, where he teaches a seminar on the American bail system.

"It's not gone," Funk said of what he called "attention-grabbing anecdotes that sway policy much more than the statistics that tell us which policies work and which don't."

The movement to eliminate bail aims to make the system fairer for poor people, who are far more likely to get stuck in jail while awaiting trial. That makes them more likely to lose their jobs and to plead guilty, even if they are innocent, experts say. Many borrow bail money from bondsmen and then end up in debt. Wealthier people, meanwhile, can buy their way out of pretrial detention on just about any charge, from shoplifting to murder.

In recent years, dozens of localities, counties and states have tried to change the system by sending more defendants home to await trial, although the methods and outcomes have varied. New York's law eliminates pretrial detention and cash bail in cases involving most misdemeanor and nonviolent felony charges. Only in the cases of the most serious charges are judges allowed to decide whether to set bail or to order someone held behind bars until trial.

Across the state, opponents of the new law have publicized cases of suspects set free ─ a serial bank robber, a repeat burglar, a man accused of manslaughter, an alleged hit-and-run drunk driver ─ which they say demonstrate how doing away with bail allows dangerous criminals to remain on the streets. Perhaps the most notorious case is that of Tiffany Harris, a Brooklyn woman who was released after she was alleged to have hit three Jewish women in a bias attack, only to be arrested the next day and accused of an assault on another woman.

The earlier assault came amid a string of anti-Semitic incidents in the New York region, including a knife attack at a Hanukkah celebration and a mass shooting at a kosher grocery store. The incidents focused pressure on elected leaders to do more to fight hate crimes.

Since then, Cuomo, New York Mayor Bill de Blasio and the leader of the state Senate ─ all Democrats who pushed for the new law ─ have said it needs to be changed. Cuomo's office said he supports adding hate crimes to a list of charges for which judges would be permitted to order a suspect held on bail.

The issue has divided New York's Democratic-led Legislature, with some supporters complaining of fearmongering and knee-jerk political responses.

"The hysteria around the situation completely ignores the fact that people have been released and accused of horrible things for a long time," said Michael Gianaris, the deputy Democratic leader of the state Senate, who sponsored the bail reform law. Under the traditional bail system, the people who got released "had the money to buy their freedom," he said.

"For every story that gets sensationalized, there are hundreds of people who have been able to keep their jobs and remain with their families while accused of low-level crimes," he said.

Gianaris pointed out that the film producer Harvey Weinstein remained free on $1 million bond ahead of his rape trial in Manhattan this week.

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Bob Hertzberg, the Democratic leader of the California state Senate, has been watching the backlash in New York with a sense of familiarity. He was an author of a California law that eliminated bail. An opposition campaign bankrolled by the bail-bond industry gathered enough signatures to put the question to voters on the November ballot. If the campaign wins at the polls, the law will be repealed.

"I don't think there was a more difficult issue to work on than bail reform," Hertzberg said. "It's hard to understand and easy to derail. The people you are fighting for don't have money or much of a voice." And there is always the fear of "one bad story, one bad actor" who could make bail reform look dangerous, he said.

"I guess you can lock everybody up. But if you do that, the justice issue is huge and the cost issue is huge," Hertzberg said.

Opponents, including many prosecutors, say they aren't against limiting bail in some circumstances. But they say the law is too restrictive and doesn't give judges enough say in determining whether someone should be held in jail.

Orange County District Attorney David Hoovler, president of the New York District Attorneys Association, said judges should have more discretion to set bail in cases involving such crimes as second-degree manslaughter, felony-level drug possession and residential burglary — which he said "resonates in suburbia."

When residents "hear about something like this, they're flabbergasted," Hoovler said. "The law is well meaning, bail reform is well meaning, but there are unintended consequences, and you cannot just cut the judges out of it completely."

He said he'd like to see more funding for pretrial supervision programs.

If New York lawmakers undo some of the new law, they will join officials in other states who have tweaked bail reform in response to complaints that criminals are being coddled. New Jersey in 2017 added to a list of offenses that carried a presumption of pretrial detention. Last year, Alaska Gov. Michael Dunleavy, a Republican, signed a law that repealed aspects of a bail reform measure.

But those who support eliminating bail said they believe the issue remains politically palatable.

Many of the Democratic presidential candidates say they want to end the cash bail system outright, while several others say they want to reduce reliance on it.

Some people released from prison or jail are always going to commit new crimes, but they have better chances of rebuilding their lives if they spend less time behind bars, said Inimai Chettiar, legislative and policy director for the Justice Action Network, which recruits lawmakers on the left and the right to overhaul the criminal justice system.

"On the whole," she said, "these reforms are going to protect public safety."