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The Shock Doctrine Came for Bail Reform

Conservative opponents of cash bail reform in New York saw an opportunity in the pandemic—and took it.

Stephanie Keith/Getty Images

It was death at Rikers Island, the awful emblem of New York State’s jail and prison system, that propelled calls for cash bail reform. Those demands achieved some success: Beginning this January, courts across the state could no longer set cash bail for misdemeanors and nonviolent felonies. But Rikers remains a deadly place, now host to one of the most concentrated coronavirus outbreaks worldwide. The jail’s chief physician called it a “public health disaster.” On Sunday, Michael Tyson, a 53-year-old man jailed at Rikers on a technical parole violation—failing to report a change in residence, according to the New York State Department of Corrections and Community Supervision—was the first person who tested positive for Covid-19 to die while in custody.

According to data compiled by the Legal Aid Society, Rikers has a coronavirus infection rate of 6.5 percent, vastly higher than that of New York City (0.8 percent), New York State (0.675 percent), and the United States (0.1 percent)—as well as earlier hotspots in Wuhan, China, and the Lombardy region in Northern Italy. There are still 4,383 people locked inside the jail, and as of Sunday, the day Tyson died, there had been 273 cases among Rikers detainees, according to the corrections department.

To protect New York residents from the coronavirus, its jails and prisons desperately need attention. “This tragedy would have been entirely avoidable,” said Tina Luongo, criminal division attorney-in-charge at Legal Aid, if New York State Governor Andrew Cuomo had directed the corrections department “to act decisively from the outset of this epidemic,” releasing people in New York’s jails and prisons, “who, like Mr. Tyson, were especially vulnerable to the virus.”

Just days before, away from the vast audience the governor draws for his daily televised coronavirus briefings, he was presiding over a rollback of some of those only recently won bail reforms. In the afternoon, Cuomo gave stressed New Yorkers succor by way of slideshows, monitoring the state’s progress in flattening the coronavirus curve. Then at night, he pushed through a budget that included his criminal justice agenda, under threat of a government shutdown—“including the Department of Health,” his top aide said. 

Cuomo got his wish. The budget passed on Thursday significantly scaled back money bail reform, meaning that more New Yorkers merely charged with criminal offenses would languish in jail if they couldn’t afford to make bond. At the same time as the coronavirus threatened to overwhelm Rikers, along with other jails and prisons across the state, Cuomo was ensuring those cells would remain filled with people too poor to purchase their release, unable to take the precautions the governor reminded viewers of each day. “As we’ve said before, the coronavirus is truly vicious and effective at what the virus does,” the governor said at his Sunday briefing. “It’s an effective killer. People who are very vulnerable must stay isolated and protected.”

Money bail wasn’t completely eliminated by the 2019 reform measures: Courts were still permitted to set bail for people accused of violent felonies, and those who could not pay would remain incarcerated while awaiting trial. The fundamental premise of bail—that ability to pay determined who it was “safe” to release—remained in the law. Years of work by community bail funds had made that inequality plain, as Nick Pinto recently reported in this magazine, and that inequality would persist even had the reforms not been rolled back this month.

Still, as a decarceration measure, bail reform was working. The state’s jail population had dropped by 30 percent, according to the Vera Institute for Justice, down to 14,983 the month reform took effect from 21,406 at the same time the previous year. It could grow again now by thousands. In seeking to placate bail reform opponents, the changes just pushed through expand courts’ ability to deny bail. Fifteen new kinds of offenses were added to the bail-eligible list, including a catch-all category, “Any felony or class A misdemeanor involving harm to an identifiable person or property committed while charges are pending on another felony or class A misdemeanor involving harm to an identifiable person or property.” It was a way of returning misdemeanors, including property crimes that don’t physically harm actual people, to the bail-eligible list. “Remanding people for misdemeanors is something that has never been done in New York,” Scott Levy, chief policy counsel for the Bronx Defenders, told Slate ahead of the vote. 

As much of a compromise as bail reform was in the first place, leaving some activists even more attuned to the ways criminal justice reform can often fall short, the rollback fight has played out at a full-throated, panicked volume. In the winter, in cop-friendly tabloids and pro–law enforcement social media groups, those seeking to preserve money bail attempted to link what they mischaracterized as a crime wave to people newly released due to reform. Then, as Covid-19 infections exploded in the city and public defenders and activists demanded the release of those sitting unprotected in jail, the anti-reformers won out, thanks to Cuomo’s budget strong-arming. “We are the only state in the country that in the middle of this public health crisis has decided to increase the number of people who are incarcerated in jails,” said Nick Encalada- Malinowski of the community-based organization Vocal-NY. 

The state’s fight against bail reform and its fight against the coronavirus pandemic have now intertwined, both opportunities to capitalize on panic, shock-doctrine style. Taking advantage of this crisis while hiding in the spotlight, Cuomo can simultaneously duck the protest over the reform rollback and walk into broader public acclaim. There are no good lessons here: Yes, Democrats will cave to the carceral state that so many in the party still wish to uphold and benefit from, and yes, due to yet more government failure, people who might not have otherwise contracted this virus will die.  

The governor still has significant, life-giving power as yet unexercised here. At his discretion, he can release people in harm’s way in his jails and prisons. He has not clearly committed to this. (A request to the governor’s office to confirm and detail what his  jail and prison release plan might look like has gone unanswered as of publication.) “After much pressure, Governor Cuomo announced on March 27 that 1,100 people in jail for ‘technical parole violations’ would be released,” Janos Marton, a candidate for Manhattan district attorney, said in a statement Monday. “Ten days later, there is still significant confusion among government agencies and attorneys about what Cuomo meant by this. Tragically, Michael Tyson, who was on Rikers Island for a technical parole violation, succumbed to Covid-19 yesterday. He should not have been in jail. He should still be alive.”

While incarcerated people become ill and die, Cuomo performs—and some across the country even want him to perform—as a kind of substitute coronavirus commander in chief. Following his afternoon briefing on Sunday, the governor tweeted, “Cabin Fever. I have it, you have it. What are you doing to help keep it at bay?” Tyson died that same day. His was the first death of what public health experts have predicted will be many. It was a death at the hands of the state by other means. I had to look it up. The last time New York State officially carried out an execution was 1963.