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Cash Bail Was Never About Safety

The reaction against bail reform exposes the lie of the old system: It was always about money.

Mario Tama/Getty Images

The slow work of criminal justice reform is often piecemeal, a matter of politicizing the system’s routine practices and developing a moral language to undo them. Bail has become one of those issues, with advocates exposing the predatory bail bonds business, creating community-based bail funds, and lobbying for an end to cash bail. The message behind these various campaigns has been simple: No one who is accused of a crime should remain in a cage simply because they can’t pay for their freedom.

In 2019, reform advocates in New York state succeeded in transforming the public understanding of bail and won some significant changes to the system—like ending cash bail for most misdemeanors and nonviolent felonies—but the backlash has come quickly in the new year. Before many judges even had a chance to weigh their bail decisions under the law, which went into effect in January, opponents were already using high-profile acts of violence to claim that reform had gone too far.

Led by politicians, prosecutors, and police union officials who were already opposed to bail reform, the backlash campaign has so far looked like this: In addition to attempting to link bail reform to a recent rise in anti-Semitic violence in the state, it has tried to discredit reform by stoking fear of people with HIV and immigrants, or claiming reform would abandon victims of human trafficking and people who may be struggling with mental health concerns. “Not a day goes by without another story of another dangerous criminal being set free,” Republican State Senator Tom O’Mara said in a statement this week. He’s right: The city’s daily tabloids and local television news stations, such as the New York Post and CBS New York, have been putting out a raft of stories about the supposed menace of people accused of crimes running free.

What legislators, police unions, and local tabloids are attempting in New York is a kind of shock doctrine as applied to criminal justice reform, taking the fear and rage people feel in response to violence and using it to justify their political agenda. As the success or failure of the new law risks being measured based on misleading, alarmist cases, it’s important to return the focus to what made reform so urgent in the first place: the racist inequity of the old system and the fact that bail doesn’t make our communities safer.

Before and after reform, bail in New York state was and is set to incentivize a return to court and is not based on a judge’s perception of danger. (As Taryn A. Merkl of the Brennan Center for Justice wrote last month, New York “has prohibited the consideration of dangerousness in setting bail since 1971 in order to ensure that those charged with crimes are afforded the presumption of innocence.”) Under the new law, judges can still set bail for certain violent felonies, but these have historically constituted around 10 percent of all cases in the state’s courts. What this means is that almost all of the people accused of the crimes being used to justify a rollback of reform were always eligible for release before trial—if they could afford it.

As a way to expose the racist and economic disparities of the old bail system, reform advocates mobilized around stories like that of Kalief Browder, who died by suicide in 2015 after spending years in New York’s dangerous Rikers Island jail complex because he could not afford bail, as well as Layleen Cubilette-Polanco, who died in a jail cell, lacking the $500 bail that could have meant freedom and access to the medical care she needed.

“The bail room is disgusting. There’s no bathroom. Often there is trash everywhere and writing all over the walls from people who are bored, or from children who are waiting in the bail room because people can’t afford childcare,” Amanda Lawson, founder of the Dollar Bail Brigade, a group of volunteers who post $1 bail for incarcerated people awaiting trial in New York, told Interview magazine in 2018. Compare this to the limited jail experience of onetime Hollywood mogul Harvey Weinstein. When he was arraigned on multiple rape charges in Manhattan in 2018, his attorneys had prearranged his bail payment of $1 million, after which he left quietly through a back door—within an hour.

A letter sent this week to Governor Andrew Cuomo by 60 groups working for criminal justice reform, ranging from Make the Road New York to Human Rights Watch, exposes the backlash tactics plainly: “By referring to the new bail reforms as a ‘get-out-of-jail-free card,’ these fearmongers are trying to expand a two-tiered system of justice in which the wealthy pay bail and go home and poor people languish in jail.”

Jewish lawmakers who support bail reform have also rejected the false choice being set up by those using anti-Semitic violence as a weapon against the new law. “As Jewish legislators, we are deeply concerned about the rash of anti-Semitic attacks,” wrote state assembly members Dan Quart, Harvey Epstein, and Linda B. Rosenthal in the New York Daily News. “We also know that we combat anti-Semitism through education and community dialogue, not incarceration, which is why we are deeply concerned about recent attempts to use these attacks as a rationale for dismantling New York’s brand new bail reform law.” It’s possible to marshal resources and community support against violence without creating more violence for others.

Bail reform isn’t about making the criminal justice system function more smoothly—it is about interrupting its ability to reinforce inequality. “We are taught that we have a system of innocent till proven guilty, but it was functioning as guilty till proven rich,” State Senator Michael Gianaris, who co-sponsored the bail reform bill, recently told The New York Times. “We fixed that.”

Having money doesn’t mean you’re not dangerous. The old bail system helped those who could afford to buy their way back to freedom, while punishing those who couldn’t. Safety isn’t protected with cash bail—just the power of wealth.