When the state of New York eliminated cash bail for most nonviolent felonies along with misdemeanors, some protested that the law, which took effect Jan. 1, went too far in removing judicial discretion about the dangers of people who, for example, have criminal records or committed a nonviolent hate crime.
Others think the measure was a good start in resolving inequities in the criminal justice system; it saw poor people behind bars for even minor crimes, while those with money could stay out of jail even if their charges were more serious.
Some, still, think both.
“Cash bail should be eliminated for all offenses, with judges given the discretion to detain the small number of individuals whose behavior poses a threat to public safety or who have demonstrated that they are unwilling to show up in court in serious cases,” wrote a group of lawyers in an opinion piece published by The New York Times on Feb. 25.
Surprisingly, the authors are not defense attorneys, but district attorneys who prosecute criminal cases in New York. Darcel D. Clark, Eric Gonzalez, Melinda Katz, Michael E. McMahon, Anthony A. Scarpino Jr., Madeline Singas and Cyrus R. Vance Jr. represent more than half the state’s population.
“Fairness and public safety are not in conflict,” they wrote in the Times op-ed. “When people trust the criminal justice system to treat everyone equitably, we are all safer.”
The law was changed to counter criticism that the cash bail system unfairly penalized poor and minority residents who were often incarcerated for lengthy periods without having been convicted of a crime, the group said in thee column. Removing bail was not just a fairness issue, proponents said; it also protected families from losing a member for a long time and helps to stabilize low-income neighborhoods.
New York state also passed a law requiring prosecutors to give defendants all of the information in their cases — a process known as “discovery” — in a timely manner so that they can prepare a defense. It is a measure that the authors also support, according to their New York Times piece.
But they want to see changes in the prohibition against judges exercising discretion in detaining people the judges believe might flee the jurisdiction or, worse, commit a violent crime or intimidate witnesses before their trial.
“Cash bail should be eliminated for all offenses, with judges given the discretion to detain the small number of individuals whose behavior poses a threat to public safety or who have demonstrated that they are unwilling to show up in court in serious cases,” the group said in the piece, pointing to the 2017 law in adjacent New Jersey that eliminated cash bail but allows judges to keep certain accused people in detention, a move the district attorneys said they believe contributed to that state’s declining crime rates.