Bail debate is a dangerous distraction

New Yorkers deserve real, immediate and lasting solutions to improve community safety, including targeted investments in violence prevention programs, stable housing, good jobs, access to mental health care, drug treatment and more — and we need them now.

But instead of focusing on evidence-based programs and repairing our frayed social safety net, some New York politicians have engaged in fearmongering, misinformation and outright lies about bail reform.

The misinformation on bail reform — at the highest levels — is blatant. Mayor Adams, for example, blamed bail reform for the accidental shooting of a police officer by a 16-year old New Yorker. Nothing about the proceedings in this case was impacted by bail reform. As with all other gun charges, the defendant was eligible to have bail set, just as he would have been prior to bail reform. The judge set a high bail, and the defendant paid it. While Adams may not like the outcome, the case has nothing to do with this policy.

Jailing more New Yorkers without a trial, as Adams has called for, is not a solution. In fact, research shows that pretrial incarceration — by destabilizing and disrupting people’s lives — increases the likelihood of future arrests and undermines the health and safety of individuals, families and their communities.

I would know. In 2009, I spent 11 months on Rikers Island on a $10,000 bail I couldn’t afford, accused of a burglary I knew nothing about. I lost my job, my car and my apartment. After suffering every abuse and indignity, including having my leg broken, I accepted a guilty plea just to end the suffering. This outcome was unjust and did nothing to promote community safety.

Adams’ call to roll back bail reform and add unchecked “judicial discretion” ignores the reasons bail reform was needed to begin with. Prior to bail reform, 70% of people incarcerated in local jails were locked up without a trial. Racial disparities were unconscionably high: Black New Yorkers were incarcerated pretrial at twice the rate of white New Yorkers.

Despite what the mayor says, under the 2019 bail reform legislation, judges in fact have expanded discretion to set non-monetary conditions, including pretrial supervision and support. But in low-level cases, including most misdemeanors and non-violent felonies, judges cannot set money bail or incarcerate people unless a person is found guilty and convicted. This key provision of the law was necessary to address the criminalization of poverty and mass pretrial incarceration of Black and Brown New Yorkers.

As he advocates for more judicial discretion, Adams has also called for changes to the law that would allow judges to be able to consider so-called “dangerousness.” This will not make New Yorkers safer but will result in more needless and harmful pretrial detention. Take the example of New Jersey, which passed bail reform five years ago and, in doing so, for the first time adopted the so-called dangerousness standard. Following bail reform in both New Jersey (with a dangerousness standard) and New York (without one), the felony pretrial rearrest rates are nearly identical. In New Jersey, 14% of people are rearrested on felonies, compared to New York’s 13% pretrial felony rearrest rate.

But New Jersey incarcerates more people pretrial. New York’s jail incarceration rate, post-bail reform, is 102 for every 100,000 residents, compared to New Jersey’s 128. If New York were to now adopt a dangerousness standard, we would make no gains in public safety but would exacerbate racial disparities, undermine constitutional rights and drive harmful incarceration.

The vast majority of people are successfully released pretrial. Pretrial rearrests have remained consistent over time and have not changed with bail reform. While statewide data comparing pre- and post-bail reform is not available, a report released in December by the Mayor’s Office of Criminal Justice shows that re-arrests for people released pretrial have slightly decreased since the implementation of bail reform. The same report found that “fewer than 1% of the 45,000- 50,000 people out pretrial are arrested for nonviolent or violent felonies each month.”

The increase in shootings and murders is devastating and we need real fixes, but all available data contradict the notion that bail reform is at all linked to this increase. Instead, the tragic and unacceptable rise in shootings is almost certainly driven by the massive societal disruptions occasioned by the pandemic. The rise in shootings in New York City is matched or outpaced by increases in cities across the nation regardless of whether they have taken steps to reform their justice system.

Now is the time that we should be connecting across political differences to meaningfully address the root causes of harm and violence and to create thriving communities. It is time to reverse the decades of disinvestment in Black and Brown communities to ensure all New Yorkers have access to stable housing, jobs and support and to invest in the evidence-based programs that actually work.