Cash bail has been eliminated for most misdemeanor charges and nonviolent felony charges as part of the New York state budget. It’s a good move for defendants who simply can’t afford bail, but the consequences could be bigger than this magnanimous act.
The change will end bail for 90% of defendants in New York state. So what’s next?
Bail is the subject of the Eighth Amendment to the U.S. Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
But bail procedures have changed many times over the years. We are living in one of those times.
Bail reform is not new. In 1966, Congress enacted the first federal guidelines for setting bail, according to the Heritage Foundation. You may be surprised to learn the goal then was the same as now: preventing the unnecessary detention of indigent defendants. It meant a presumption of release, which could be reversed with evidence that the defendant was likely to flee in order to avoid prosecution.
In the 1980s, the philosophy of bail underwent another dramatic change. Under the Comprehensive Crime Control Act of 1984, courts were authorized to consider whether a defendant might pose a danger to the community when determining pretrial release. The law also set forth specific circumstances under which defendants could be denied bail, such as capital offenses, violent offenses and repeat felony offenses.
The issues of unnecessary detention and danger to the community bring us to where we are today.
The bail system is unfair to low-income defendants. Taxpayers spend too much on the incarceration of nonviolent offenders who should not be behind bars in the first place. Hudson 4th Ward Supervisor Linda Mussmann rightly stated that bail can be misused against minority defendants.
On the other side of the debate, Columbia County District Attorney Paul Czajka said the legislation doesn’t give judges the ability to make a determination based on whether the defendant could be considered dangerous.
Greene County District Attorney Joseph Stanzione said one purpose of bail is to make sure defendants return to court. He added the weight of evidence, employment and the safety of the community “have fallen by the wayside.”
Ultimately, judges and attorneys will have to consider their own responses to each case. In the meantime, one factor transcends all the others.
“It’s really about who has money and who doesn’t,” Mussmann said of bail and bail reform. Can we do a better job with bail? Yes, because wealth should not mean justice.