New York Times Gets It Factually Wrong On Bail Reform—New York Did Not Implement The New Jersey Bail System And Is Going To Just Throw Open The Jail Doors

The New York Times editorial board is trying to chill everyone out on bail reform, branding it some historic reform that’s going to work.  We appreciate the fact that they are putting the paddles on these reforms, but we know they are fatally flawed.  The Times, despite what are now hundreds of articles to the contrary, is trying to rest it’s not-so-compelling case on one simple claim that came from an ill-informed Cuomo administration spokesperson: bail reform worked in New Jersey, so it will work in New York.

RELATED: A Sad Last Gasp Against Criminal Justice Reform

Well, actually, it didn’t work in New Jersey and cost the state hundreds of millions of dollar that New York simply does not have.  But, let’s assume for the moment that the New Jersey system did work.  That it did is to the contrary a complete and total indictment of New York’s reforms because there is one key thing the New York Times editorial board doesn’t understand—New York did not adopt New Jersey’s bail system.  Let us explain why, and why the lack of actually enacting New Jersey’s bail system is problematic in New York.

First, New Jersey changed the New Jersey State Constitution to expand the power of prosecutors to deny bail altogether.  The term for that, in case the New York Times has never heard of it, is “Preventative Detention.”  Indeed, this actually required a change of the New Jersey State constitution, which was referred by the legislature and approved by the voters.  This was “Public Question” number 1 on the 2014 November ballot: New Jersey Pretrial Detention Amendment, Public Question No. 1 (2014)

In New York, the legislature attempted to get rid of money bail, but it did not expand the power of preventative detention.  In fact, at a legislative hearing in January, Assemblyman Lentol noted that New York has a long tradition against preventative detention, noting that a task force under Governor Rockefeller rejected the expansion of preventative detention (then in vogue in the 1960s), a tradition that lives on today.  New York similarly rejected preventative detention polices in the 1980’s when that movement came in vogue again.  So, basically, New York did the release part of the New Jersey system without the detention part.  That is a huge problem, and it is in large part why law enforcement and prosecutors from New York City to Buffalo are crying foul.

Second, New Jersey implemented a system of statewide pretrial supervision, similar to probation or parole, to monitor the defendants who were release without bail.  Eighty-eight percent of defendants are on some form of supervision under the new New Jersey system.  In fact, this cost the state hundreds of millions of dollars and the New Jersey Association of Counties unsuccessfully sued the State of New Jersey due to the local costs of bail reform, which were estimated to be at $1-2 million per year per county.  The Counties lost not on the merit, but on the basis that the New Jersey Bail Reform Act did not fall under the unfunded mandate law because of the change to New Jersey’s state constitution on preventative detention.  Say what you will on whether you hate money bail or not, but one thing absolutely clear—to eliminate money bail requires some replacement system like the D.C. or federal system.  In New York, exactly zero dollars was spent by the State Legislature when it came to implementing supervision policies as an alternative to bail.

The third big problem—New Jersey relies on a risk-based system of preventative detention that involves the use of a pretrial risk assessment algorithm, run by Arnold Ventures.  New York did not implement a risk-based system and did not mandate a statewide pretrial risk assessment like New Jersey.  Arnold Ventures, in fact, recently declared that the use of the risk-based system using the pretrial risk assessment as a success.  Said the report: “The reforms also greatly reduced the use of monetary bail as an initial release condition, created an option for pretrial detention without bail, established a pretrial monitoring program, and instituted speedy-trial laws that impose time limits for the processing of certain cases.”  In fact, the report suggested that the decision to not arrest and issue a summons was a result of “the use of the PSA [Public Safety Assessment tool].”

To the contrary, in New York, one-hundred-six community and civil rights groups sent Governor Cuomo a letter saying to not use risk assessment tools in New York because such risk assessment system would make the situation worse: Bail Reform in New York: Over 100 Community & Advocacy Groups across New York State

The New York Times might want to check their facts on this one: NEW YORK DID NOT IMPLEMENT THE NEW JERSEY SYSTEM.  New York is simply just going to release people for free without having to post bail (and without monitoring by licensed bail agents with arrest powers) with zero alternatives.  If New York wants to implement the New Jersey system, it should get serious about doing so.  Instead, the current approach is going to embolden repeat criminals who know they can simply move from county to county within New York and be released on a get-out-of-jail-free card before the ink dries on the police report.