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Cash bail hurts the poor. New York’s governor wants to greatly limit it.

Gov. Andrew Cuomo is taking aim at one of the justice system’s worst practices against the poor.

New York Gov. Andrew Cuomo. Spencer Platt/Getty Images

New York Gov. Andrew Cuomo wants to end one of the criminal justice system’s worst practices against the poor.

Cuomo, a Democrat, will propose ending cash bail for people accused of nonviolent felonies or misdemeanors during Wednesday’s State of the State speech, according to the New York Times.

Currently, judges can set monetary bail to be paid out of pocket or through a bond company, with the expectation that defendants get the money back or only have to pay a partial sum if they attend court hearings. But if defendants don’t pay up, they remain in jail.

Cuomo’s proposal would pull back a practice that has long disproportionately harmed low-income people who can’t afford bail and, therefore, languish in jail while awaiting trial — sometimes for as long as weeks, months, or even years. Low-income defendants, even those who are innocent, are thus encouraged to accept a plea bargain — which can lead to time in prison and a criminal record — just to get out of jail sooner.

Aides told the Times that defendants would instead be released “either on their own promise to return to court, or with some other conditions imposed by the judge.” While bail would still exist for violent felonies, it could only be imposed after review of a defendant’s finances.

New York wouldn’t be the first state to curtail cash bail. In 2017, New Jersey ended the use of cash bail in nearly all cases by requiring that “state judges release most defendants unless they are a proven flight risk or threat to public safety,” the Times reported.

It’s unclear, however, if Cuomo’s proposals will pass the state legislature — with staunch opposition from law enforcement groups and Republicans, who currently control the state Senate.

Cuomo’s bail proposal would come as part of a broader criminal justice reform package, which would also change evidence disclosure in the trial process, attempt to speed up the process of bringing a person to trial, and potentially end some asset forfeiture practices.

The bail proposal is particularly notable, however, because of its potential reach in the criminal justice system — and, in particular, its possible benefits to low-income people.

How cash bail traps the poor

In the US, there are typically more than 600,000 people in jail at any given time. About 70 percent of these people are being held pretrial, so they haven’t been convicted of a crime. Many of these people — the latest federal data suggests as many as nine in 10 people in jail for felonies in the 75 largest counties — are in jail because they couldn’t afford to pay bail.

A 2016 report by the Prison Policy Initiative looked at the income disparities involved. It concluded, “We find that most people who are unable to meet bail fall within the poorest third of society.”

Reviewing data from the Bureau of Justice Statistics, the report also found that “in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages. People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts.”

This doesn’t take a genius to figure out: If your income is around $15,000 a year, it’s simply going to be much more difficult to afford to pay for bail that can run in the hundreds or thousands of dollars.

That reality might make a plea deal, regardless of innocence and even if it results in some prison time and a criminal record, look like a good idea — because it at least brings an end to the uncertainty that can come with the possibility of spending weeks, months, or years in jail before trial.

As Nick Pinto previously reported for the New York Times magazine:

[The Bronx Freedom Fund] bailed out nearly 200 [low-income] defendants and generated some illuminating statistics. Ninety-six percent of the fund's clients made it to every one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund's clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.

Given these facts, why does much of the criminal justice system use cash bail? Public officials are genuinely worried about the possibility that, for example, someone will be let out of jail solely because he’s poor, only for him to go into hiding or commit more crimes. Not only would that be potentially disastrous for public safety, but for the elected officials involved — lawmakers, judges, prosecutors — it’s a significant political risk.

But there are alternatives. In Washington, DC, courts are only allowed to set bail if the defendant can afford it. To ensure people don’t flee or commit a crime while out, the system checks if someone poses a flight risk or is dangerous. If a judge decides a defendant does not pose a risk, the person can go home, where he or she may be monitored further by drug tests and ankle monitors.

In DC, the system has worked, based on local data: Around 88 percent of released defendants made all scheduled court appearances from fiscal year 2011 to mid-2015, and around 90 percent remained arrest-free while their cases proceeded in the same time span.

This can also cost governments less money. A 2013 analysis by the Administrative Office of US Courts found supervision by pretrial services officers costs about a tenth as much as keeping someone locked up in the federal system.

But reform has come very slowly, with only a few states, counties, and cities following DC’s example. Cuomo is now offering a chance in one of the country’s most populous states.

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