Skip to main content

Reforming reforms

Did New York’s criminal justice reforms go too far?

Reforming reforms

(Kathy Willens/AP)

A New York moment: 

On Jan. 1, bail reform went into effect in New York, prohibiting judges from setting cash bail in about 90 percent of cases. Before, New York’s bail system was a mess. In 2018, I wrote about it, spending a day trying to post bail for someone at a far flung city jail. The national push for this particular criminal justice reform has been bipartisan, focused on how cash bail singles out the poor for pretrial detention. 

Reform advocates in New York have pointed out several examples of this disparity: Harvey Weinstein stands accused of the violent crime of rape, but he had the means to post his $1 million bail to stay out of jail pretrial. Meanwhile, Bronx teenager Kalief Browder spent three years at Rikers pretrial over an alleged theft of a backpack, because his family could not pay the $3,000 bail, only to have charges eventually dropped. Browder made several suicide attempts in jail, and then finally died of suicide two years after his release. 

New York’s bail reforms that passed last year went well beyond what other states had done, even New Jersey, which eliminated cash bail but allowed judges to assess the risk of releasing defendants pretrial. Under the New York reforms, judges can only set bail for certain violent crimes—all others are released pretrial. 

What makes New York complicated is that its judges have never been allowed to assess a defendant’s risk to the community in setting bail, on the grounds that this helped ensure the right to presumption of innocence. As a main condition for setting bail, New York judges are only allowed to determine someone’s flight risk. The new law doesn’t change that.

But it does rely on measures that reasonable criminal justice reform advocates have endorsed to me: supervised release and ankle monitoring. The problem is that the state did not add additional funding for these programs even though the numbers needing monitoring will grow substantially. (Bail company advocates have argued to me that the bail system has worked for hundreds of years, and these new measures won’t.)

Now, barely a week under the new bail law, New York’s reforms are under heavy scrutiny, from New York Police Department chief Dermot Shea and from the Jewish community. Gov. Andrew Cuomo has said he would revisit the law to address concerns, particularly from the Jewish community after a wave of anti-Semitic attacks. The new law does not allow judges to set cash bail in cases of hate crimes. Support groups for victims of domestic violence have also advocated for New York judges to have more discretion in setting bail. I’ll be keeping an eye on where this leads, and what it might mean for such criminal justice reforms nationally.

Worth your time:  

It’s been more than a year since this fascinating story about the Appalachian mafia rigging the McDonald’s Monopoly game came out. Here’s hoping someone is making it into a movie. As an aside, I love that American prosecutors put so much creative effort into naming their investigative operations (in this case, “Operation Final Answer”). 

This week I learned: 

Dogs on the loose delayed 107 trains in the city last year, and raccoons took second place by delaying 87. Late getting to work in New York? Blame a goose on the tracks. 

A court case you might not know about: 

This spring the U.S. Supreme Court will consider the validity of various subpoenas for President Donald Trump’s taxes and other financial information. Meanwhile, in a less noticed case in New York, a woman who accused Trump of rape might seek the release of his New York tax returns to show that her defamation case has jurisdiction in New York. Trump’s legal team in that case had argued the New York courts don’t have jurisdiction over the case, because Trump’s comments against the woman were made in Washington, D.C.  

Culture I am consuming: 

Lincoln in the Bardo by George Saunders. What a dazzling book. One of my friends pointed out that someone should do an essay comparing it with another afterlife parable, C.S. Lewis’ The Great Divorce.

Email me with tips, story ideas, and feedback at ebelz@wng.org