Column: Backlash over New York’s bail reform fueled by fear

With family members by his side, Thomas Murphy walked out of a Central Islip courtroom Tuesday, free to return home ahead of his March 17 sentencing. Since his initial arraignment in October 2018 following the fatal crash that left a 12-year-old Boy Scout dead, Mr. Murphy has avoided jail.

That didn’t change after a jury convicted him in December on nine charges, including aggravated vehicular homicide, a Class B felony that carries up to 25 years in prison.

Noticeably missing has been any outrage from law enforcement and politicians, decrying the judicial system that allows a convicted felon to avoid jail.

Shouldn’t all the bad guys be locked up for the rest of us to be safe?

Well, Mr. Murphy, a 61-year-old white man with considerable means, posted a $500,000 bond following that 2018 arraignment. That bond has allowed him to remain free as the criminal case against him proceeds.

For many others accused of far less serious crimes, coming up with $1,000 or $5,000 in bail is nearly impossible. So as their cases proceed through the system, they sit in jail.

The bail reform that went into effect this month in New York was meant to address the inequity of a system that punishes those unable to afford their freedom and criminalizes poverty. 

The bedrock of the judicial system is that people are innocent until proven guilty. The way critics of the new legislation have spoken, the system should be flipped to guilty until proven innocent.

Arrested for a misdemeanor? Lock ’em up and throw away the key. That’s the only way we can stay safe, they argue.

Fear has run rampant, fueled locally by officials from Riverhead Councilwoman Jodi Giglio to Assemblyman Anthony Palumbo to Congressman Lee Zeldin, all of whom are Republicans. Mr. Palumbo called for a full repeal of the bail reform. 

“Stand up for our rule of law & our men/women in blue,” Mr. Zeldin tweeted Saturday, promoting his appearance on Fox News, where he also managed to get in a dig on the dangers of illegal immigrants. Michael McAdams, a spokesman for the National Republican Congressional Committee, issued a statement Tuesday saying: “Long Island voters deserve to know if [Democratic Congressional candidates] Perry Gershon, Nancy Goroff and Bridget Fleming support Democrats’ dangerous policy of putting violent criminals back on the street.”

Fear, fear and more fear. Don’t forget: Anyone will be released if they have the means to post bail.

Approximately 70% of all inmates in state and local jails are pretrial detainees, according to a 2012 report by the Justice Policy Institute that argued the U.S. should end the cash bail system. The jail population in the U.S. climbed rapidly starting in the ’70s and the pretrial population increased by 433% between 1970 and 2015, according to a report by the Vera Institute of Justice.

“The time spent in pretrial detention exacts not only a steep and long-term toll on an indigent defendant’s productivity, family unity, and community well-being but also an enormous cost on American taxpayers,” wrote Liana Goff in the Brooklyn Law Review.

It’s important to note that in New York, the statute judges have used to determine bail is failure to appear. Public safety has not been a factor to be considered. Also consider that the U.S. and the Philippines are the only countries with a bail system dominated by commercial bail bondsmen. In the U.S., it’s a $2 billion industry that has every reason to want to maintain the status quo.

The man who goes to jail for failure to make bond is treated in almost every jurisdiction just like the convicted criminal serving a sentence. His home may be disrupted, his family humiliated and his chance of making a living permanently taken away.

Attorney General Robert F. Kennedy, June 1, 1964

“Supporters of the public safety provision argued that judges were already factoring public safety into the pretrial calculus by setting extremely high bail as a means of imposing detention,” wrote Insha Rahman, program director of the Vera Institute of Justice, in a 2019 report. “Allowing judges to openly consider public safety would simply bring transparency to that decision.”

The public safety provision was not included into New York’s bail reform but, as a compromise, bail remained for serious cases of violent felonies, sex-related charges and some domestic violence offenses, Ms. Rahman noted.

People in jail who cannot afford even modest bail amounts are more likely to plead guilty. That’s what law enforcement and prosecutors want. Easy wins.

It all leads to the criminogenic effect, meaning people convicted of crimes are more likely to end up back in the system.

New York is not the first state to reform its bail policy. We only need to look to New Jersey to see how reform can work. The New York Daily News published a story in November and cited FBI statistics showing violent crimes in the state declined from 21,914 in 2016 to 18,357 in 2018. New Jersey’s reforms took effect in 2017. There’s a key difference in how bail works in the two states. In New Jersey, judges use a risk assessment system that weighs a suspect’s criminal history and the charges they face. Opponents have argued that system can also lead to prejudices similar to the current system. New Jersey’s jail population has declined and the time frame for cases to be resolved has stayed close to the same, even with a slight uptick in the number of people missing court appearances, according to the Daily News.

“Reform is an ongoing process,” Gov. Andrew Cuomo said Tuesday during his budget address. “It has consequences. We need to respond to the facts but not the politics and we need to act on information, not hyperbole.”

If New York insists on tweaking the new reforms, perhaps the New Jersey model would be best to follow. But blowing up the reform and going back to status quo isn’t the answer. Mass incarceration in the United States is a problem that can’t be ignored.