In 2016, New Mexico passed a constitutional amendment to reform its bail system to allow pre-release for low-level offenders awaiting trial. The idea was to give a break to poor defendants who could not afford bail and were automatically being jailed pending trial. Criticism has been thick, with many complaints about judges releasing dangerous and violent offenders back into the community, even after prosecutors specifically argued to keep them in custody.
Perhaps the most controversial release came when a District Court judge in Taos released five adults who were discovered in a ramshackle religious compound along with a dead 3-year-old and 11 other starving children. The children said they had been trained to commit mass shootings. Judge Sarah Backus released the adults pending trial. New Mexico is still struggling with trying to find an equitable solution.
In the meantime, the bail reform movement continues to spread across the country.
January 2020 ushered in a unique new law in New York State that abolished cash bail for defendants arrested for non-violent crimes. Activists in the bail reform movement called it landmark legislation. Critics, many in law enforcement, are calling it “a disgrace” and say the politicians forgot to consider a most important point: public safety.
Lawmakers nationwide are watching what happens in New York. So far it isn’t pretty.
New York judges are not allowed to deviate from automatic release for those accused of a long list of misdemeanors and non-violent crimes. They cannot consider a defendant’s past record, even if it included multiple violent crimes. Judges may only rule on the latest misdemeanor or non-violent charge that brought the arrestee to the courtroom. Perhaps most worrisome is what the New York Legislature considers to be a non-violent crime. It would be laughable if it weren’t so deadly serious.
Example: Tiffany Harris started the New Year viciously slapping Jewish women in Brooklyn while yelling horrible anti-Semitic curses. The new revolving-door justice system mandated her release. A day later Harris was arrested for randomly slugging a woman in the face while two children watched in horror. Harris was released again. She eventually wound up in a psych ward.
Example: Gerod Woodbury was arrested in early January for robbing four banks in Manhattan. He passed a note to each teller who, in turn, gave him cash. Because Woodbury did not brandish a weapon his alleged grand larceny was considered a non-violent crime and the judge had to let him loose. Police say Woodbury promptly robbed two more banks.
Example: Eugene Webb is known to police as an aggressive, homeless panhandler. On Jan. 10, police say he slugged a woman so hard she lost a tooth. Hours later he violently attacked another woman. Despite a rap sheet showing four other arrests, the judge had to release him back to the streets.
Washington, D.C., dropped cash bail back in the early ’90s, but reformers figured they should keep track of those they released. D.C. now spends $65 million annually on a pre-trial program that supervises 14,000 people. It is not perfect. A suspect accused of assaulting a police officer got a no-bail release and two days later was charged in a fatal stabbing.
Since when is brutally attacking people, robbing a bank or assaulting a police officer a non-violent crime? Tell that to the frightened bank tellers, the Jewish women or the officer.
There isn’t enough space here to list each egregious no-bail case I found in places where this experiment is playing out.
There is another unintended consequence of current bail reform. In states with designated drug courts, a defendant is brought in and given the choice of jail or a rehabilitation program. Under a no-bail system, these defendants don’t get a chance to choose rehab; they are automatically released. The mentally ill immediately go back to the streets, without treatment, likely as not to reoffend.
Locking up suspects on minor charges just because they cannot afford bail should not be the norm. It is a shame that policy was ever in place because – are you ready for this? – most people currently held in state and local jails have not been convicted of any crime. The Prison Police Initiative reports over 540,000 people are currently imprisoned awaiting trial in local lockups. Fifteen thousand of them are minors, 9,000 are also awaiting psychiatric evaluation or treatment.
Bail has traditionally been thought of as a way to ensure the arrested person doesn’t flee and returns for trial. But shouldn’t bail also be carefully considered as a way to keep the public safe from habitually dangerous people? Taking away judicial discretion is just foolish. So is ignoring a defendant’s violent past or pretending an assault or robbery isn’t a violent crime.
More than 40 states are currently considering bail reform measures. It’s the latest trend in criminal justice circles, and many would agree it is long overdue. Let’s just hope no state follows New York’s lead.