Why We Need Cash Bail

Fair or dangerous? Days after ending cash bail, New York has second thoughts.

On Jan. 1, a landmark New York law curtailing the use of cash bail went into effect, signaling a leap in a nationwide movement to reduce the number of people held in jails.

But after less than a week under the new system, elected officials are already having second thoughts, rattled by stories of suspects' being set free and committing new crimes ─ including that of a woman accused of an anti-Semitic attack in New York City.

The backlash, led by conservative lawmakers and law enforcement authorities, is sweeping up some Democrats who pushed for the law, including Gov. Andrew Cuomo, who said Monday that it remains "a work in progress."

The shift shows that politicians are still wary of appearing soft on crime, even as the country has become more open to changing its criminal justice system by electing reform-minded prosecutors, easing sentencing laws and eliminating policies that discriminate against the poor. As the latest state to struggle over revamping its bail laws, New York may now become a lesson for others considering similar changes.

"This is, in some ways, the Willie Horton effect playing out over and over again, including in our contemporary progressive politics," said Kellen Funk, an associate professor at Columbia Law School, where he teaches a seminar on the American bail system.

"It's not gone," Funk said of what he called "attention-grabbing anecdotes that sway policy much more than the statistics that tell us which policies work and which don't."

The movement to eliminate bail aims to make the system fairer for poor people, who are far more likely to get stuck in jail while awaiting trial. That makes them more likely to lose their jobs and to plead guilty, even if they are innocent, experts say. Many borrow bail money from bondsmen and then end up in debt. Wealthier people, meanwhile, can buy their way out of pretrial detention on just about any charge, from shoplifting to murder.

In recent years, dozens of localities, counties and states have tried to change the system by sending more defendants home to await trial, although the methods and outcomes have varied. New York's law eliminates pretrial detention and cash bail in cases involving most misdemeanor and nonviolent felony charges. Only in the cases of the most serious charges are judges allowed to decide whether to set bail or to order someone held behind bars until trial.

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