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Bail Reform Made New Yorkers Safer

Issue 255

But a coalition that includes bond companies, DAs and risk-averse Dems wants to put thousands of people back in jail.

Peter Rugh Mar 4

The pews of Brooklyn Criminal Court’s arraignment rooms at 120 Schermerhorn Street are packed with parents, wives, girlfriends, grandmothers — almost all of them African American or Latino. They wait, pensive, some in clothing usually reserved for a Sunday, some in whatever they were wearing when they rushed to the courtroom from home or work. Guards march their loved ones in and line them up behind a glass partition where they wait in handcuffs to stand before the presiding judge.

Once that happens, a harried public defender makes the case for the conditions of the defendant’s release while their supporters watch on. Often, when it looks like the judge is leaning toward setting bail, the defense attorney might say something to the effect of, “Your honor, I’ve spoken to the defendant’s parents and they can afford to make a $500 payment if it comes to that. That is all they can afford.”

Cops, prosecutors, corrections officers, the loudest opponents of bail reform, need crime.

On Feb. 14, a tall woman in a gray petticoat, stood in a hallway of 120 Schermerhorn, clutching documents handed to her moments earlier by a bailiff. The arresting officers with the 75th Precinct in East New York had laughed at Mame Diarra Sylla. For her, a small property owner and the mother of a college-age child, that was the most humiliating part of her ordeal. Nevertheless, she was the image of composure. Until she wasn’t.

“This is the second time I was improperly arrested for false allegations,” she said, becoming tearful. “It’s traumatizing not only to me but to my family, and it’s costly.” 

Earlier that day, she had attempted to change the locks on her apartment. Sylla had a judge’s order granting her possession of the flat but, seeing that the tenant, a relative of Sylla’s, had a limited order of protection prohibiting her from talking to her, the arresting officers refused to look at Sylla’s document. The conflict is one of those heated family disputes in which Sylla says her relative is using the courts against her. Law enforcement intervened and did what it knows how to do. Drag someone to jail.

Regardless, Sylla was grateful that she did not have to pay bail.

“The financial repercussions I’m sure would have been endless,” she said. “My car would have been towed. I don’t know what other expenses I might have accrued by being incarcerated. I probably wouldn’t have been able to recover from it financially.”

She and thousands of other New Yorkers like her are the beneficiaries of comprehensive bail reforms approved by the state legislature last year. The new law eliminates cash bail for most nonviolent crimes and in all cases requires judges to use the least restrictive means of ensuring defendants return for their next court appearance.

Now, a vocal coalition of police, prosecutors, corrections officers, and bail bond companies is pushing to roll back the reforms. Democratic lawmakers, including Senate Majority leader Andrea Stewart-Cousins and Gov. Andrew Cuomo, who passed the law a year ago are wavering. They want to amend the legislation to give judges more discretion, a maneuver critics warn will perpetuate the same economic and racial disparities in the justice system the original law is intended to fight.

Why the resounding backlash?

For one thing, cops, prosecutors, corrections officers — the loudest opponents of bail reform — need crime. They need criminalized populations. Their livelihoods depend on it.

What’s more, the change is threatening to put the bond industry out of business across the state and it knows it. An examination of New York’s lobbying database by the Times Herald-Record found that after the bail reform was first proposed two years ago, the bond industry spent $150,000 on lobbying. That’s more than it spent on lobbying and campaign contributions between 2009 and 2017 combined, according to data compiled by FollowTheMoney.org.

Corrections officer suddenly isn’t such an in-demand profession either. New York’s jail population has dropped from about 21,000 on any given day, to 15,000 since the law was fully implemented in January. If you are serious about ending mass incarceration, these are outstanding developments, says Nick Encalada-Malinowski, Civil Rights Campaign Director at VOCAL-NY.

“Thousands, if not tens of thousands of people so far this year who have been arrested [have] come back to work, gone home, taken their kids to school, have been able to pay rent and just live their daily life without having been put in jail and losing everything,” he tells The Indypendent. “That’s the true story. Then there are a few cases that have been out in the media that are saying this has all been really terrible. Those cases are very severe outliers.”

Encalada-Malinowski is referring to a number of news stories that have been used to paint a picture of rampant lawlessness. Google “man released without bail” and you’ll receive a deluge of these tales emanating from the New York press.

“Willie Horton still looms large in all of our memories,” says Insha Rahman, Director of Strategy and New Initiatives at the Vera Institute of Justice, referencing the man whose crime spree after escaping prison via a furlough program in Massachusetts was used by George Bush Sr. to tarnish the state’s governor, Michael Dukakis, his opponent in the 1988 presidential election. “That’s the thing that we are realizing about criminal justice reform. Data and reason actually don’t win the day. Fear and that gut, Willie Horton-esque narrative is what tends to carry the day.”

New York’s jail population has dropped from about 21,000 on any given day to 15,000 since the law was fully implemented in January.

The Daily News and the New York Post could find any number of stories like Sylla’s. Instead, they are combing the city’s criminal courts for just the opposite.

Rather than revealing flaws in the bail law, however, Encalada-Malinowski says “these cases are exposing the failure of the state and these counties to deal with other underlying issues like mental health care, like supportive housing.” 

In one story, headlined “Accused NYC serial burglar released again and again and again thanks to new bail law,” a suspected Amazon package thief told the News: “I’m poor. I couldn’t afford to pay no bail. I can’t afford to eat.”

Encalada-Malinowski points to another case from the pages of the paper. An alleged pickpocket with 138 arrests on his rap sheet who has been apprehended and released five times since the no-cash-bail law went into effect.

“To me, that’s a pretty big indication that arresting this man 138 times for petty crimes did not have the result that you wanted,” he said.

Locking people up also poses a threat to public safety.

“Jails are very, very unsafe places,” says Rahman. “These are places where people are sexually assaulted, where people are injured, where people lose not only their freedom but also their safety and their dignity. How many people are we willing to be allowed to be harmed in jail to avoid the one outlier case of somebody who’s released and goes out and does something bad?”

If the reform were implemented in the Bronx — the poorest urban area in the country — when bail was set at $3,000 for Kalief Browder in 2010, he might still be alive. Sixteen-years-old and accused of stealing a backpack, Browder spent three years in Rikers, two of them in solitary confinement. The case against him was eventually dropped for lack of evidence but he struggled with the emotional and psychological scars inflicted by his time behind bars. Two years after his release, Browder hung himself.

Were the reform in place during his arraignment, Browder “would have been able to have a [high school] graduation,” his brother, Akeem, tells The Indy. “He would have been able to see my brother have his niece and nephew. He would have been able to be home with his family during birthdays. But instead, $3,000 was a key factor in why he stayed in jail.”

Akeem joined numerous civil rights campaigners and public defender organizations in advocating for the end of cash bail, as well as halting the practice of solitary confinement. Their efforts were aided by a slate of left-wing and socialist freshmen legislators, who arrived in Albany last year from Brooklyn, Queens, Manhattan and the Bronx and placed a sweeping package of criminal justice reforms high on their agenda. By the time it came to finalizing the state’s budget at the end of March, they had not only secured bail reform’s passage but also managed to ax a legal loophole that allowed district attorneys to withhold evidence from the defense up until the day before trial.

Now Democrats in more conservative districts are worried about mailers arriving on doorsteps this November accusing them of emboldening criminals. Andrew Gounardes, who managed to unseat a Republican incumbent, Marty Golden, in a 2018 race to represent South Brooklyn in the state Senate is co-sponsoring a bill that will allow judges to require mental health and substance abuse treatment as a condition of release. (He did not respond to requests for comment.)

Stewart-Cousins, meanwhile, is backing a proposal to amend the reform to grant judges more leeway in determining whether to set bail. This, however, has raised the specter that the racism inherent in the criminal justice system that the original law was intended to root out will be reintroduced. In determining whether to set bail, judges often rely on algorithms that measure the likelihood a defendant is a flight risk. These factor in a defendant’s rap sheet over the past 10 years, which includes stop-and-frisk data, the Bloomberg-era policy of disproportionately searching young men of color without probable cause.

“The data that’s used is biased and flawed and raises serious concerns about racial equity,” Rahman says. “It’s not an individualized consideration of a person. It’s based on data for people that have a similar criminal history and background to you.”

Some Democrats in the Assembly are reportedly lobbying the majority leader, Carl Heastie of the Bronx, to support Steward-Cousins’ measure. So far he has resisted efforts to roll back the reform but there are fears among advocates that he might cave to pressure, particularly when budget negotiations begin in earnest this March.

Akeem Browder, who met with Steward-Cousins ahead of the original law’s passage is aghast at her about-face. “She agrees to pass this bill and then turns her back on the public and is one of the main voices you hear in opposition,” he says. “So you’re basically saying you did something and you didn’t know what you were doing and now you’re going to take it back. You knew what you were doing.”

“Everybody wants to be safe,’’ Browder added. “But you don’t keep a community safe by incarcerating that community.”

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