Should cash bail be eliminated?

“The 360” shows you diverse perspectives on the day’s top stories.

What’s happening

A new law in New York state that eliminated cash bail for most nonviolent crimes went into effect at the beginning of January. The change has been celebrated by criminal justice reform advocates but has been met with intense opposition from law enforcement and conservative politicians.

Bail is a payment made by people accused of a crime so they can be released from custody while awaiting trial. It’s designed as an incentive to compel the accused to return to court. If they appear at their future court date, the money is returned. Bail levels vary widely — from a few hundred dollars to millions — depending on the crime and jurisdiction. Those who can’t afford bail are held in detention until their trial. 

New York’s recently enacted law prohibits bail charges for most misdemeanors and some felonies, which combined make up about 90 percent of arrests in the state each year. A push to change the bail system has gained steam in several states recently. New Jersey virtually eliminated cash bail in 2017. Similar efforts are underway in Illinois and California. 

Why there’s debate

New York’s bail reform has faced strong opposition in the first two weeks it has been in place. Opponents argue that the changes allow dangerous criminals back on the streets, where they will commit more crimes. As evidence, those opposed point to a man who is alleged to have robbed a bank shortly after being released on suspicion of four other bank heists, and a woman accused of committing several anti-Semitic attacks. One New York state lawmaker said Gov. Andrew Cuomo will have “blood on his hands” if the law isn’t changed.  

Reform advocates say critics are cherry-picking a few isolated examples to gin up fear about changes that benefit thousands. Bail makes money — not a person’s flight risk or likelihood of reoffending — the deciding factor for who is released and who is detained, they argue. As a result, thousands of poor people are locked away on charges for minor offenses, while those with more resources, who may be accused of much more severe crimes, can walk free. 

There’s evidence that being locked up, even for just a few days, can cause people to lose their jobs, be evicted from their homes and have their children placed in foster care. Research suggests that people who are detained pretrial are more likely to be found guilty than those who were released, often accept a guilty plea just so they can go home and may even be more likely to reoffend after serving their time. Early results in New Jersey show no increase in the state’s crime rate since bail reform was enacted.

What’s next

Criticism of bail reform appears to be having an impact in New York. Cuomo called the law a “work in progress” and suggested there are “changes that need to be made.” The new governor of Illinois, who was sworn into office this week, said ending cash bail is at the top of his agenda. The fate of California’s bail reforms will be decided by a ballot initiative in November.

Perspectives

Supporters

Cash bail criminalizes poverty

“The problem is that the bail system makes poverty a barrier to release. It makes little sense to lock up people with too little money to bail out while letting their better-heeled counterparts buy their freedom.” — Editorial, Los Angeles Times

Pretrial detention can ruin people’s lives

“People held in jail while awaiting trial start to lose ground even after just a few days of incarceration: They may lose their jobs, fail to make rent, or have their children taken away. Maintaining stability and community ties are crucial to keep people from falling back into the cycle of arrest and incarceration.” — Lauren Krisai, Jason Pye and Norman Reimer, Slate

Critics of reform misunderstand the purpose of bail

“Many seem to believe that pretrial detention should be part of a punishment. Those who are not held pretrial are, to many, getting away with something. ... Bail is simply intended to ensure a person’s return to court, not to penalize a person who has not yet been convicted of any crime.” — Sarah Lustbader, the Appeal

Cash bail makes it more likely that innocent people are found guilty

“Many people accused of crimes are innocent, and their odds of winning their case are substantially greater if they’re free before trial. People stuck in jail are much, much more likely to plead guilty, even if they’re not, simply so they can get out and return to their lives.” — Samantha Michaels, Mother Jones

Critics are using scare tactics for political reasons

“What legislators, police unions, and local tabloids are attempting in New York is a kind of shock doctrine as applied to criminal justice reform, taking the fear and rage people feel in response to violence and using it to justify their political agenda. “ — Melissa Gira Grant, New Republic

Ending cash bail doesn’t mean major changes in who goes free and who doesn’t

“Under the old rules, a large number of inmates were in jail for only very short periods of time, typically one to three days following arrest. After that, many accused inmates were either released by a judge or able to make bail. So those accused criminals were free for most of the criminal case under the old system, too.”  — Douglass Dowty, Syracuse Post-Standard

Opponents

Ending cash bail puts dangerous people back on the street

“Thousands of hardened criminals and dangerous suspects are walking free or will be soon in the Empire State thanks to what was dubbed a new ‘bail reform’ law.” — Tammy Bruce, Washington Times

There is too much leniency in labeling offenses as nonviolent 

“Non-violent felonies are often … violent. They include vehicular manslaughter and even some robbery, assault, kidnapping, stalking and regular manslaughter charges.” — Nicole Gelinas, New York Post

The bail system should be reformed, but most changes go too far

“We have become increasingly concerned that the idea of bail reform has been extended well beyond its intent. Instead, we see it being expanded into what seems to be an empty-the-jails effort that is making our cities less safe, returning violent offenders to the streets with too little consideration of their pasts and the nature of the accusations against them.” — Editorial, Dallas Morning News

The reforms are the result of overzealous progressive policies

“Label something ‘criminal-justice reform’ these days and it’s likely to be whisked into law in left-leaning states with little thought to the consequences.” — Editorial, Wall Street Journal

Judges should be allowed to make exceptions in specific cases

“The biggest flaw in the bail reform law was obvious from the start: Judges were stripped of any discretion when it came to keeping offenders locked up. … It's crazy. This is part of why we have judges in the first place. We trust them to know when somebody has to be kept off the street in order to ensure public safety.” — Tom Wrobleski, Staten Island Live

Cash bail ensures that people show up for their court dates

“It is true that defendants who have been arrested but not yet convicted should not be punished. It is also true that without some security — cash deposits, bail, or jail — many thousands of these defendants will never show up for their day in court, and some will commit additional crimes once freed.” — Barry Latzer, National Review

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