Effort in NY to Address Inequities in Bail Quickly Ran Aground
Program Date: Nov. 14, 2021

5 takeaways:

Bail practices are a local affair. With more than 18,000 police departments, 2,300 prosecutors’ offices and 3,000 jails in the U.S., bail practices vary widely and inequities are rampant, said Insha Rahman, who advocates for bail reform at the Vera Institute of Justice.  “If you are in one judge’s courtroom with one district attorney, you’ll see certain bail practices,” she said. “Another judge, another courtroom, the practice looks different. … So much of what happens with bail is specific to the district attorney’s office and to the judge and to the courtroom you’re in.” What is consistent is that Black suspects are less likely to get bail, and those who stand trial from jail are 18% more likely to be convicted.

Changes to the bail system should reduce the incarceration of people who should be presumed innocent. What Rahman and other advocates consider to be good bail reform efforts eliminates wealth and profit as the basis for pretrial release or detention; results in fewer people behind bars; address racial disparities; and doesn’t harm public safety. That can be tricky, she said, but it has worked in some states. In other states, changes to the system haven’t resulted in the reforms Insha would like to see. In New Mexico, as one example, the elimination of cash bail in one county led to more people in jail without bond. “The point is there’s got to be fewer people behind bars,” she said.

The bail system has evolved into a parallel system of pre-trial punishment, despite research showing it to be ineffective. For centuries, bail was used to compel people to appear for trial. In 1987, the U.S. Supreme Court ruled that public safety could be used as a consideration when setting bail. But Rahman said that every rigorous study on bail and pretrial practices has found that money bail has no correlation with public safety. It also has little impact on failure to appear. With studies showing that 40% of Americans would struggle to cover a $400 emergency expense, requiring bail of suspects without financial resources perpetuates a cycle of financial inequality: People are arrested for minor infractions and bail keeps them in jail, making it impossible to earn an income. As little as two days in jail can have so great a destabilizing effect on a person’s employment, housing and family responsibilities that it increases the likelihood of missing court or of a new arrest, Rahman said.

Changes to the bail system in New York were followed by a major backlash – but not because the bail reform was failing. The 2019 law dictates that bail is no longer be required for most of those arrested to be released from jail. Among other things, Rahman said, the law required mandatory appearance tickets for a majority of offenses, whether misdemeanors and low-level felonies. It also created mandatory release on a wide swath of cases. And it limited judges’ ability to put conditions on people’s releases – to put people on electronic monitoring or drug testing. But the law led to concerns that people were on the street who should have been behind bars. New York City’s police commissioner also said changes to the bail system were responsible for a spike in gun violence. He later backtracked on that claim, but the public soon turned on the bail-reform effort, despite data showing that gun violence spiked across the nation during the pandemic, in places that had bail reform and places where nothing had changed, Rahman said.

Reporters should focus on bail statistics, not outlier cases. A single well-publicized case of suspect out on bail committing additional crimes can poison the public’s mind against changes to bail practices, Rahman said. In fact, fewer than 5% of suspects out on bail are rearrested. She advised reporters to report facts and statistics on bail overall, not individual outlier cases. She also said reporters should use people-first, humanizing language when reporting on high-profile cases and “beware of dog-whistle caricatures.”


Speaker: 

Insha Rahman, Vice President, Advocacy and Partnerships, Vera Institute of Justice


This program was funded by Arnold Ventures. NPF is solely responsible for the content.

Insha Rahman
Vice President, Advocacy and Partnerships, Vera Institute of Justice
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Transcript
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Resources on Bail Reform
Bail Reform and the Role of the Press: A Case Study of the Backlash to New York’s New Bail Law
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