Just two weeks after its official rollout, the early reviews for New York state’s bail-reform initiative are in, and they rival those of the movie “Cats,” which the Washington Post recently dubbed
It turns out the public isn’t particularly crazy about criminal defendants accused of serious offenses waltzing out of courthouses before their alleged victims are discharged from the hospital (that is, if they’re alive).
In almost every exchange I’ve had about New York’s turn away from cash bail, supporters of the reform offer two arguments: First, they point to the unfairness of a system 𒊎that would — on the one hand — allow a dangerous-but-wealthy defendant to essentially buy his pretrial release, but — on the other — incarcerate a poor-but-harmless defendant who just didn’t have the scratch for bail. Second, they’ll , which recently enacted its own ♑bail reform without blood raining down from the heavens.
The first point is easily answered: Simply empower judges to order high-risk defendants (poor and rich, alike) held pretrial. This is something New Jersey made sure to do before it all but eliminated cash bail.
Now, remanding defendants to pretrial detention (which New Jersey does to about ) could result in problematically long periods of detention, which is why granting Empire State judges the power to remand defendants on public safety grounds should be accompanied by a meaningful speedy-trial requirement. This would prevent defendants — who are presumed innocent — from languishing behind bars as their cases slog through the system.
Speeding things up for those detained pretrial would probably require some extra funding to ensure the system can offer quicker resolutions.
As in New York, New Jersey’s bail-reform package included a speedy-trial guarantee, with the latter state the pretrial detention period to 180 days after indictment. But New Jersey’s reform package secured funding for 20 new Superior Court judges in order to meet those more stringent demands — something New York did not do.
Indeed, anyone comparing New York’s bail reform to New Jersey’s needs to understand how pretrial detention is handled in the two states.
One important difference is that prosecutors in New Jersey can move to a defendant’s release if that defendant is rearrested for a new offense, or if he fails to appear in court. Garden State judges granted more than 1,000 such motions in 2018.
Judges in New York can also revoke releases, but in a much more limited set of circumstances; that is, , when a defendant “initially charged with a felony” is charged with either “a new felony” or “intimidating a witness.” Revocations are also allowed when defendants are found to “persistently and willfully [fail] to appear at scheduled court dates, or violat[e] an order of protection.”
None of this is to say that New Jersey’s bail-reform initiative is ideal. issued by the state’s judiciary shows a not-insignificant increase in the percentage of defendants charged with new offenses while awaiting trial. But, as things stand now, New York’s initiative poses a much greater risk to the public’s safety. And leaving the reforms untouched also risks undermining the public’s faith in the justice system.
Even “Cats” director Tom Hooper took the unprecedented step of updating his film with just days after it premiered in theaters. Surely New York state can make the necessary tweaks to its bail-reform law, especially when our safety is at stake.
Rafael A. Mangual is a fellow and deputy director of legal policy at the Manhattan Institute for Policy Research, and a contributing editor to City Journal.