New York is trapped in a bail reform conundrum

Supporters of bail reform say the system locks up too many people before trial. Opponents say it locks up too few. They’re both right. Hundreds of people are arrested every day in New York City, tens of thousands every year. Some of them are thugs who shouldn’t be on the street another second. Some are innocent, and some didn’t do anything they should go to jail for. Some can be trusted in the community and some can’t, and there’s no sure way to know which is which. Any system is going to make mistakes in both directions. Thugs will be released and commit rape and murder. Harmless people will sit in jail until the system gets around to trying them.

Part of the bail reform argument is about which kind of mistake you’re more willing to tolerate. It’s probably a waste of breath to argue about that, so I’ll talk about the other part: How can we get the number of mistakes, in both directions, as low as possible? (Why should you bother reading what I say? I’ve been a lawyer for 53 years, including 11 as a judge on New York’s highest court, so maybe I know something about the system.)

To minimize mistakes, the first thing to do is make a list of crimes, and rank them from the worst to the least bad. Murder is worse than rape, which is worse than petty larceny, which is worse than not cleaning up after your dog.

For the least bad crimes, nobody should be held pending trial. The inverse isn’t true; since everyone is presumed innocent no one, not even an alleged murderer, should be held pending trial if he or she can safely be let out. But with the worst crimes, somebody — i.e., a judge — has to take a very hard look.

So, once we have a list of crimes, we have to divide them into two categories: One in which everybody is released pending trial, and one in which the judge decides case by case. Up to this point, I haven’t said anything controversial. The whole bail reform argument, essentially, is about which crimes go in which category.

In New York, for a long time, all but the most trivial crimes, the clean-up-after-your-dog variety, were in category 2: The judge could decide. Very often, for a petty crime like shoplifting or starting a fistfight, the judge would release the defendant, or set bail at a low level the defendant could post; but sometimes, and more often for the more serious crimes, the judge would set bail high enough to be sure the defendant stayed in, or even “remand” — deny bail altogether.

That changed after the Democrats won control of the Legislature in 2018.

A bill passed in 2019 basically moved all crimes into category 1, the let-everyone-out category, with a list of exceptions, mainly violent felonies. Among the crimes for which everyone had to be released without bail: all drug crimes except very large-scale trafficking; burglary, if the residents weren’t home and the burglar was alone and unarmed; and robbery by a solitary robber, unless a weapon was displayed.

To many, including me, the 2019 law seemed crazy. Maybe a lot of drug dealers and burglars and purse-snatchers can be left on the street without much risk to the public, but all of them? And as it turned out, the bill was at best ill-timed: It went into effect in early 2020, when violent crime, perhaps helped by COVID-induced craziness, spiked. The bill lasted in its original form only six months. The 2020 Legislature cut it back, adding more crimes to the bail-eligible list, but some think not enough, and politicians and talking heads can be heard screaming at each other about it.

What’s going on here anyway? Why would anyone think it’s a good idea to pass a blanket exemption from pre-trial detention for crimes as serious as burglary or robbery? Isn’t it obviously better to let a judge decide case by case? The answer is fear of discrimination. Bail reform supporters say that if judges have discretion, they will be harder, if only unconsciously, on people they find alien or threatening because their lifestyles or their skin colors differ from the judges’.

And to some degree, that’s right. Very few judges are intentionally racist, but they are all human, and humans have biases that influence their judgments.

But the answer isn’t to take discretion to protect the community away from judges. Many decisions — very much including whether a man or woman should be incarcerated or released — have to be made by judges who know something about the situation, not by legislators who want everyone to go free lest someone be unjustly imprisoned. The advocates of bail reform are making an unattainable perfection — a world free from all injustice — the enemy of the public good.