Do you want criminal justice reform? Don’t be like New York

New York’s bail reform laws are making headlines once again for all the wrong reasons. The story of Keaira Bennefield, a mother of three who was shot by her ex-husband less than 24 hours after being released from prison, has shocked the Empire State. Bennefield’s ex had been arrested for violently assaulting her and was a clear threat to her safety given his long history of domestic violence and abuse. But he was only charged with misdemeanor offenses, and under New York’s new bail reform laws, the judge wasn’t allowed to protect Keaira by holding her ex-husband while he awaited trial.

These laws completely eliminated bail and pre-trial detention for a range of misdemeanors and many felonies. they also mandate pre-trial release for misdemeanor and “non-violent” offences, leaving judges with no choice but to release detainees before trial, even if they pose a clear risk of absconding or seriously endanger public safety.

Of course, the pre-trial detention system needs to be reformed. When an arrested person poses little to no risk to the community, their freedom should not depend on being able to afford bail. But restrictive, one-size-fits-all remedies that leave no room for judicial discretion, like those in New York, do more harm than good.

It’s time to use evidence-based tools and practices to keep our streets safe, limit unnecessary pre-trial detention and reduce recidivism.

The top priority of the criminal justice system should be protecting public safety, a goal that is at odds with the traditional pre-trial bail system, which determines who will be released based on their ability to pay.

Under this system, potentially dangerous and violent individuals can easily buy their way out of prison if they have the money to do so. Meanwhile, others who don’t pose a threat to public safety are being denied their freedom simply because they’re poor and can’t afford bail — even though they can be safely monitored outside of prison.

All of this results in many people being pushed even further into poverty, with no benefit to public safety. According to the Brookings Institution, pre-trial detention reduces a defendant’s likelihood of finding employment by 9.4 percentage points, even four years after the bail hearing. Brookings found that defendants who were incarcerated prior to trial lost an average of $29,001 in income over their lifetime.

The economic consequences of poor bail practices fuel not only poverty but also crime; Pre-trial detention is a risk factor for recidivism, as is poverty and unemployment.

And it hurts taxpayers. Pre-trial detention costs local governments nearly $14 billion a year. When you consider that more than 60 percent of defendants are detained before trial simply because they are unable to post bail, often a very small amount of money, this overspending is not essential to public safety.

It is true that financial bail can, under the right circumstances, reduce a person’s risk of absconding, and calls for the practice to be abolished entirely are misguided. But the current system’s over-reliance on cash bail jails the wrong people, undermines public safety and reduces the chances of successful reintegration into society.

The experiment in New York showed that.

The original law, passed in 2019, “eliminated bail and required the release of 90 percent of all arrests statewide.” The results were terrible and immediate. Just a few months later, the state had to roll back some of the reforms to curb a new crime wave.

But the rollback didn’t go far enough. New York law still handcuffs judges and prosecutors, forcing them to release people based on arbitrary, uniform standards — even if they believe they pose a threat to public safety or a risk of absconding. Specific tragedies like Keaira’s not only expose the major flaws in New York’s bail laws, but recent data shows that the number of re-arrests has increased since the reforms were implemented, indicating a deterioration in overall public safety.

There are smarter ways to reform the pre-trail system. The first step in fixing the chaos in New York is to allow judges to exercise their discretion in arresting people who pose a risk to public safety or a flight hazard.

Also, the system must stop punishing people just because they are poor. A better approach would be to establish presumptions of release and presumptions of non-financial conditions of release for specific offenses and allow judges to overrule such presumptions when they have valid reasons. To help judges make these critical decisions, they should have access to evidence-based risk assessment tools and algorithms.

New York policymakers might look to their Garden State neighbors for an example of comprehensive pre-trial reform done right. New Jersey gives judges wide discretion to detain dangerous individuals and flight hazards before the trial. The judges also have access to a risk assessment tool to help them make this determination and the results have been excellent. The state has significantly reduced its prison population without increasing crime and has increased the proportion of dangerous individuals incarcerated in court.

Reforms like these will save taxpayers money, reduce poverty and recidivism, and free our law enforcement agencies to focus on what matters most – safety.

The pre-trial system needs to change. Let’s learn from New York’s mistakes and do it right.

Greg Glod is an Americans for Prosperity fellow focused on public safety and criminal justice reform.

The views expressed in this article are the author’s own.