Are N.Y. Bail Changes A Double-Edged Sword?

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Tamika Mallory

Crime and punishment.  It’s pretty simple. Anyone who believes in fairness, equality, and justice cannot ignore the flaws in our criminal justice system. What people may not realize, however, is that in addition to profiling and other forms of discrimination, people of color and the poor face another challenge in places like New York:  a broken bail system.

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Earlier this week, Chief Judge Jonathan Lipmann proposed reforms to the bail process in his State of the Judiciary address. Instead of determining bail amounts based on how much of a flight risk an individual is, he argued for changes that would make bail more affordable so that non-violent offenders (mostly poor folks) would not be disproportionately locked up while violent offenders get released.

Though we, of course, don’t want criminals roaming around on our streets, at the same time, we have a system that currently criminalizes people before they get a fair trial.

That’s not the way justice is carried out.

Even though this kind of change is a progressive move that I applaud, we have to make sure that it, too, doesn’t turn into something dictated by a judge’s own bias.  That’s the last thing we need.

According the NY Times, a Human Rights Watch report found that there were 19,137 non-felony defendants arrested in N.Y.C. who had bail set at $1,000 or less. The report found that 87 percent of the defendants in those cases weren’t able to post bail and ended up in jail while awaiting trial (they remained for an average of 15.7 days).  In that same piece, there’s the story of a woman from Brooklyn who spent 12 days in jail – including eight days at notorious Rikers Island – because she couldn’t afford the $1,000 bail that was set after an officer arrested her because he claimed he saw her drop a crack pipe.

Her bail was eventually reduced to $250, and to add insult to injury, the case was dropped “because a lab test showed there was no drug residue on the pipe,” according to the Times.

What kind of system is that?

Do we really want people who are arrested for petty crimes like jumping a train turnstile to stay in tough jails with hardened criminals?  That doesn’t help anyone.

Because bail bondsmen are less likely to work with poor folks, they are the ones that end up locked behind bars even before they are found guilty of a crime.

That’s definitely not justice.

And because people of color and the poor often times cannot afford expensive lawyers, they again are on the losing end of the stick. Freedom should never rest on how much money a person has – or does not have.

Judge Lipmann is absolutely 100 percent correct, we must change this system in N.Y.  In the city itself, we already have discriminatory practices like  “Stop & Frisk” in place; we don’t need other unfair and skewed practices to add to the problem.  We must remember that we are not looking for people to become better criminals in jail, but instead, looking for true reform that can either prevent criminal activity or rehabilitate people.

On the surface, Judge Lipmann’s proposal is fantastic; it’s exactly the sort of bold move we need to help reform a system that locks up far too many for non-violent offenses and turns them into hardened criminals.

But the problem is that the power to determine bail will still be in the hands of a judge.

Under this proposal, a judge would dictate whether a person is a threat to public safety and then set the bail amount.  How do we know that a judge won’t approach this with his/her own preconceived ideas?  How do we know that a judge won’t look at a young Black man and think, Oh he’s just like all the other criminals, let me set the bail high? How do we know that a judge won’t discriminate against Blacks, Latinos, Asians, women, gays, or any other group they might not agree with?

The truth is, we won’t.

Late last year, Human Rights Watch also released a 33-page report on marijuana and misdemeanor arrests.  According to the report, during the last 15 years, N.Y.C. police have arrested more than 500,000 people – most of them young Blacks or Hispanics – on misdemeanor charges of possessing small amounts of marijuana in public view.  While many of these folks likely spent time in jail before their court hearing because of unfair bail policies, who’s to say that a judge won’t make the decision to do the same in the future.

I praise Judge Lipmann’s proposal, and for his bold action to not only recognize the problem with our bail system, but for putting forth concrete steps to fix it.  Now we must create further solutions to make sure there is some sort of check on judges to prevent their own prejudices from taking over when determining who is or is not a danger to society.  After all, if New York can set the example, then we can pave the way for the rest of the country to follow.  It’s our job to not only embrace change, but help make it.

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