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Bail Reform: Needed and Controversial

New York State’s Bail Reform law went into effect on January 1 this year.  Controversy preceded it – and continues.  I invite you to consider with me how race and poverty impact this issue, and also to read the story of an effort to bring sides together.

Background:  The original intention of cash bail was simply to insure a person’s appearance for a court date.  Our Constitution assures all people that they will be treated as innocent until proven guilty, but bail in effect incarcerated people until proven innocent.   What many studies have shown, however, is that cash bail created significant hardships for people in poverty and People of Color, while people of means were able to simply post bail and leave.  Thus it has proven discriminatory.

Understand that when someone is arrested for a minor drug offense and cannot afford, say, a $500 bail, here are some of the frequently witnessed results:

  • They land in jail, certainly a fearful and dangerous place to be.
  • They have little contact with family or other sources of support.
  • They might lose their car.
  • They might lose their job.
  • They might lose their home.
  • They might lose their children.
  • They might remain in jail for weeks, months, even years until a court date.
  • Since they were already in dire financial straits, they are unlikely to afford an attorney who might advocate effectively for their rights.
  • They are assigned to an already overwhelmed Public Defender.
  • They might appear in court outfitted in “jail orange,” which can easily bias a judge or a jury.

Statistics show that this dynamic is compounded for People of Color since they struggle with poverty in disproportionate numbers, and are often arrested when a white person might not be.

prisoner in jail

By contrast, understand how different a minor drug offense plays out for, say, a young white suburban person:

  • Cash bail will almost certainly be posted. Her/his parents will almost certainly have bail or will have the means to raise it.
  • The family attorney will begin working with them on the case – which she/he will sometimes manage to have dismissed.
  • If the person does appear in court he/she would be well-dressed, which also can bias a judge or jury.
  • No jail time. None of the other consequences.

What, then is the controversy about bail reform?

Typical of so many contentious issues today, this one is characterized by a chasm:

On the one side are those who insist on no adjustments to the legislation, having witnessed too often that such legislation is gradually diluted.  They’ve seen all the major Civil Rights legislation of the ‘60s be eviscerated by the courts (e.g., Affirmative Action, Voting Rights, Fair Housing).   At a minimum, they say, let the new law work for at least six months before attempting any tweaking.

On the opposite side are those who foretell of Armageddon, of crazed criminals running rampant, rapes, murders, pillaging, etc.  I recently heard a county prosecutor actually exclaim, “The jails will be empty!!”  Some law enforcement officials are already pointing to tragic cases, knowing very well that they have nothing to do with the changes brought by bail reform.

In an attempt to bridge this chasm, United Christian Leadership Ministries (UCLM) has thrown a plank across the gulf.

UCLM, an advocate for the legislation, also has a solid working relationship with most of the major law enforcement entities in the area.  The organization hosted a meeting with several local law enforcement chiefs and top officials, with a singular expressed purpose:   to LISTEN, to hear from those officials their misgivings and concerns about the new law.  Here are a few of the concerns expressed by law enforcement:

  • There is broad agreement within law enforcement that bail reform was long overdue because of the hardship it imposed on people without financial means and on minority communities. However:
  • The law is very complex, and they have had very little time to absorb it and prepare for it, especially for the training of officers in proper procedure. The cost of the training will also be prohibitive and they don’t have the funds.
  • More discretion needs to be given to judges about setting bail for particular violent offenses, and where there are issues of mental health or the likelihood of someone harming themselves or others.
  • More protections are needed for the victims of crimes and for witnesses.
  • There are not enough systems in place yet for good alternatives to incarceration. Pre-trial diversion services are good but overworked.

Also present was Jill Paperno of the Monroe County Public Defender’s Office, which has done state-wide training on the new laws.  She responded to many of these concerns.  (One of the Chiefs later rightfully noted that it would have been helpful to also have a representative of the District Attorney’s office present.)

Clearly the State moved without sufficient consultation with either law enforcement or with the organizations on the front lines, particularly communities of color.  It’s also clear that eventually, there will need to be adjustments, hopefully through a collaborative process, like the meeting sponsored by United Christian Leadership Ministries.  Kudos to that organization!

In the meantime, be aware that misinformation is rampant, particularly from some conservative corners.  Watch, learn, and remember that the thrust of this legislation was to relieve a long-standing, extreme injustice that fell very heavily on people of color.

Last word:  one implied narrative being promoted out there is particularly problematic – the following false conundrum:

If you support policies that ensure racial and economic equity, you must sacrifice public safety!!

This is an unproven and misleading notion.  I encourage you not to drink of that particular potion.

Please “Leave a Reply” below.

 

Resources:

Sunday January 26, 3:00 – 5:30:  “Race, Racism and Church.”  Workshop presented by Rev. William Wilkinson and Rev. Alan Dailey, at St. Anne’s Church on West Henrietta Rd.  For details call John Kapusta 914-456-1454.

Monday February 3, 6 – 8:00 pm:  Greece Central School District is sponsoring a Community Conversation:  “The N-Word:  Origins, Ownership, and Impact of Language”  Led by Dr. Sean Eversley Bradwell.  Olympia Auditorium, 1139 Maiden Lane.

Wednesday February 5, 9:00 – 12:00:  “Taking the Road Less Traveled:  Hidden Byways of Unconscious Bias”  workshop presented by National Coalition Building Institute.  Details here.

Wednesday February 26, 6:00 – 8:30:  “Defined by Others:  A Theatre-based Exploration of the Social Implications of Identity”  Facilitated by Impact Interactive, presented by Jewish Federation of  Greater Rochester/Levine Center to End Hate.  Details here.

Saturdays, March 7 & 14, 8:30 – 1:00:  “Sacred Conversations – An Invitation to Be an Antiracist”  Workshops sponsored by Church of the Assumption and Church of the Resurrection in Fairport.  Additional information:  Sacred Conversations Invitation 1.10.20.

March 26-7 and April 16:  William H. Shannon Lecture Series at Nazareth College:  “Neighbor with Neighbor:  A Call to Solidarity, ” and “Puerto Rico & Charlottesville”.  Details here.

Rochester Museum and Science Center has a new exhibit:  “Objectively Racist:  How objects and images perpetuate racism – and what we can do to change it.”  If you go, be sure to also check out the exhibit on the pickaninny art piece that was removed from the Charlotte carousel by the Take It Down Planning Committee.  An important piece of history is explained.

Tuesday May 19, 7:00: “The Struggle Against White Nationalism” Lecture by Dr. Bryan Massingale, part of the Marvin Mich Memorial Lecture series.  St. John Fisher College.  Details here.

Subscribe to The Minority Reporter, an excellent newspaper with news and opinions of interest to Rochester’s minority community and their allies.

Making Sense of Bail Reform in NYS.  Provided by Sheriff Todd Baxter.

Monroe County Public Defender Tim Donaher sent UCLM a summary of his convictions about the new legislation.  I asked his permission to make that available to my readers, and he agreed:  Bail ref – Timothy Donaher.

And this last-minute offering from Iman Abid, NY Civil Liberties Union:  Bail Reform is Already Working.

Check out the array of events including workshops offered by 540westmain.org

 

 

Action:

Friday February 7, 7:00 pm:  Poor People’s Campaign meeting, Mt. Olivet Baptist Church, 141 Adams St..  Features nationally-renowned preacher Dr. William Barber.  Details here.

Meet with your County Legislator to discuss the City/County relationship in general. See sample questions and contact info at my prior blog City/Suburban Divide in Living Color.

Support minority-owned businesses, e.g., these restaurants:

  • Caribbean Heritage – 719 S. Plymouth Ave.
  • Unkl Moe’s BBQ and Catering – 493 West Ave.
  • B+Healthy Fresh Food Market – 442 Genesee St.
  • Brooks Landing Restaurant – 904 Genesee St.
  • Livie’s Jamaican Restaurant and Import Market – 375 Chili Ave.

The Racial Equity Advocacy Team of the Rochester City School District met on January 27.  Unfortunately, I don’t have information on their next meeting.  Perhaps Howard Eagle will reply with that information.

12 thoughts on “Bail Reform: Needed and Controversial”

  1. Here are three excellent articles on bail reform by Times Union columnist Chris Churchill:

    Churchill points out that bail reform has changed nothing for rich people: Bail Reform Always Existed for the Rich
    https://www.timesunion.com/news/article/Churchill-Bail-reform-always-existed-for-the-rich-14947519.php

    Churchill discusses some of the misinformation being disseminated: Lies and Misinformation will doom bail
    https://www.timesunion.com/news/article/Churchill-Lies-and-misinformation-will-doom-bail-15007796.php

    Churchill responds to criticisms of his support for bail reform:
    https://www.timesunion.com/news/article/Churchill-A-back-and-forth-on-bail-reform-15013745.php

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  2. Frank, thanks for this well-written and thoughtful piece.

    And thanks for pointing out UCLM’s excellent work on this and other justice issues.

    A few points of clarification:

    • Lack of funds for training law enforcement: People should be aware that the Public Defenders office has offered to do training.

    • You quote law enforcement as saying “More discretion needs to be given to judges about setting bail for particular violent offenses.” BUT bail reform law specifically covers ONLY non-violent charges. Judges CAN set bail for violent offenses. (There is disagreement about what constitutes a “violent” offense.)

    • You quote the need for judges to be able use discretion when “there are issues of mental health or the likelihood of someone harming themselves or others”. BUT ‘he bail law does NOT prevent judges from doing this. Actually, the discretion starts earlier, with the intervening police officer: “Police officers also have discretion not to issue a Desk Appearance Ticket if the defendant appears to “face harm without immediate medical or mental health care.’” https://www.courtinnovation.org/sites/default/files/media/document/2019/Bail_Reform_NY_full_0.pdf
    • “More protections are needed for victims of crime and witnesses.” I don’t think this comment refers to Bail Reform, but to Discovery reform, which is the requirement that evidence against a defendant be turned over promptly to the defendant and their lawyer, especially before any plea bargaining is arranged. I think we’d all agree that people need to know the evidence against them to make a good decision on plea bargaining! The new Discovery law understands the need for protecting victims and witnesses. The law contains provisions for protecting their identity if victim or witness is at risk.

    Thanks again, Frank, for working to correct the misunderstanding and misinformation that is out there. It is important both to stop unjustly incarcerating poor people and also to protect public safety. Making sure we know the facts is important to getting this right. May I recommend this excellent summary – clearly written and nicely detailed – by the Center for Court Innovation: https://www.courtinnovation.org/sites/default/files/media/document/2019/Bail_Reform_NY_full_0.pdf

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    1. Thanks for these clarifications, Rebecca. I’m always constrained by length, so I decided to cite some of the law enforcement complaints as I’d heard them. I did mention that Jill Paperno responded to these, but didn’t include all her refutations. Your comments help lay those out! Thanks.

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  3. The misunderstanding and fear mongering misinformation regarding bail and discovery reform is classic. Our team will work with Law Enforcement, Clergy, Community groups, and Legislators to strengthen understanding. We will provide training, Op Ed pieces, videos, community events, and Town Hall meetings. Data from New Jersey and other States is important.
    The new law is complex and takes time to understand and implement. Funding for local D.A. and other Law Enforcement is needed.

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  4. The law is very complex, and they have had very little time to absorb it and prepare for it, especially for the training of officers in proper procedure. The cost of the training will also be prohibitive and they don’t have the funds.
    I don’t understand this one… I must be missing something… What special training would LE need? I mean, other than re-training guards to go back on patrol I suppose…

    and where there are issues of mental health or the likelihood of someone harming themselves or others
    Aren’t there already psychiatric protocols in place for this? Cash bail high enough to keep them in a jail is the wrong strategy for someone that should be committed for treatment.

    There are not enough systems in place yet for good alternatives to incarceration.
    If I were in the bail bonds industry, I’d be thinking real hard about how to leverage grant money to shift my business model into being able to offer these services to municipalities.

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    1. Thanks for the comments. One reply: street officers will need training on the implications of this law for their conduct, from first contact onward, if they’re going to give citizens an accurate picture of rights and possibilities.

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      1. I appreciate the reply. I suppose I’m just oversimplifying the issue in my mind. Since judges have always had the discretion to release people on their own recognizance, I don’t see why bail impacts how the officers on the street are supposed to interact with people they arrest. I guess I could see how they may have grown used to leveraging the threat of lengthy pre-trial jail stays as a means of coercing confessions, but it doesn’t seem like it would take more than a memo to let them know they no longer have that leverage. Sure, I’m being a little facetious. But, you wrote, “ if they’re going to give citizens an accurate picture of rights and possibilities.“. In my way of thinking, the officers that arred you shouldn’t’ be giving you any legal advice beyond miranda and removing cash bail doesn’t change that does it?

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      2. I don’t claim any expertise on this. The best I could do here was report what I heard from these officials. The answer may lie in one of the resources I’ve listed. Thanks for weighing in.

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      3. Of course. Thanks for reporting the details and thank you again for replying directly. That particular “concern” from law enforcement just seemed a bit disingenuous and I thought this might be a forum for readers to exchange opinions and insights.

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