As stories pile up of repeat offenders released hours after arrest, Americans might be wondering what possessed Empire State leaders to adopt such a misguided policy. The intentions were noble. But the outcomes were awful — because Albany didn’t take the smarter approach to reform illustrated by states like New Jersey.
New York lawmakers led by Assembly Speaker Carl Heastie wanted to address the inequities inherent in a pretrial justice system that would set free a dangerous-but-wealthy defendant while detaining a poor-but-harmless one. They also wanted to minimize unjustifiably lengthy pretrial detentions. But they pursued these ends in flawed fashion.
Let’s start with the first problem bail reform was meant to address: wealth inequities.
While the old system’s reliance on cash bail surely produced some unfair outcomes, readers should understand that prolonged detentions resulting from a defendant’s inability to pay bail were relatively rare even in the pre-reform period. A month after Albany passed bail reform, New York City released a report showing that just over 10 percent of annual arrests resulted in a bail-related jail admission. Of those defendants, 70 percent were released within seven days.
A smarter way to minimize the outcomes reformers were worried about was to reorient pretrial-release decisions around the danger a given defendant posed to the public — something judges could determine using their own discretion, with the help of algorithmic risk assessment. This is the model other jurisdictions, like New Jersey, have followed.
Such a system would have rendered a defendant’s wealth irrelevant in a much less risky manner, by giving judges the discretion to jail dangerous defendants. New York decided instead to perpetuate the old rule that limits judicial considerations to risk of flight while also excluding huge categories of defendants from pretrial detention altogether.
New Jersey Attorney General Christopher Porrino, who oversaw the Garden State’s bail reform, recently identified these missteps as “systemic flaws” in Albany’s legislation.
Some Albany Democrats have expressed skepticism of algorithmic risk assessments, claiming that they’re rife with racial bias. But this ignores the evidence that they can be (and often are) equally predictive across racial groups. Moreover, this argument ignores the fact that the Empire State’s largest city already uses algorithmic risk assessments to determine risk of flight — something the state’s bail reform doesn’t prohibit.
In New Jersey, such assessments don’t seem to have changed the racial composition of that state’s pretrial jail population, according to a recent report assessing its reform.
What undermines the fairness rationale even more is Albany’s decision to leave cash bail on the table for violent-felony defendants. The fact that lawmakers carved violent-felony charges out of the reform undercuts their defense of the current law — the fairness issue is no less present in the cases of those accused of violent felonies, after all.
The carveout is best understood as tacit recognition of the reality that a defendant’s dangerousness matters. The problem, however, is that in many if not most cases, the immediate charges faced by the defendant in question aren’t a particularly reliable indicator of that defendant’s likelihood of reoffending — another flaw.
Nor does the reform address the root causes of lengthy pretrial detentions. For one thing, the amount of time someone stands to spend in pretrial detention is very much a function of how long it takes for a case to reach the point of ultimate disposition. That, in turn, is largely a function of resources. Lawmakers could have improved an underfunded justice system by setting money aside for more public defenders, prosecutors and judges.
Instead, they coupled bail reform with a set of discovery reforms that significantly added to the compliance burden borne by prosecutors. And they did so without any additional funding. That decision has already led to dozens of prosecutor resignations in Brooklyn. It has also prompted Manhattan DA Cy Vance to consider nonprosecution or deferred prosecution in certain cases to cushion the blow of the law’s new demands on prosecutors’ time.
These developments don’t bode well for the prospect of speedier trials. Here again, New York should have taken a page from New Jersey’s book, as the Garden State included in its bail reform funding for 20 new superior-court judges to help better manage caseloads and ensure speedy trials.
The logical inconsistencies between the rationale behind New York’s reform and its provisions illustrate clearly what our policymakers stand to learn from the more sensible approach to reform taken by other states. Here’s hoping they take those lessons to heart.
Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute and a contributing editor of City Journal. This piece was adapted from City Journal. Follow him on Twitter here.
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