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Encouraging Signs from New York’s Bail Reform Fight

Justice reformers, at last, know how to fight back eloquently and effectively.

January 22, 2020

It would be easy to be gloomy about the ways in which reactionary forces are trying to undermine New York’s historic justice reforms even before those reforms have had a chance to succeed or fail. The politicians and journalists and law enforcement lobbyists fighting to restore the broken, old, racist bail system that ruined countless lives are of the same ilk as the folks making similar pitches to try to thwart similar reforms around the country. New York or Philadelphia, Missouri or Florida, their song remains the same: fearmongering to gin up public and political and judicial pressure for the latest crackdown.

But I’m staying optimistic about the fight in New York over bail reform and about the fights of reformist prosecutors in other places around the country. What’s new and encouraging this time around is that reformist voices — backed by not just by hard evidence but by what they’ve experienced in their own lives and work — are pushing back, eloquently and effectively, against entrenched interests. The reformers have seen these sorts of fear-based campaigns before from prosecutors and police unions, where one case is turned into a trend by willing media organizations. Now the reformers know how to respond.

In the case of New York, there were reasoned defenses like the one offered in December, before the reforms took effect, by the Brennan Center’s Taryn Merkl. “[T]he law has not changed what judges are permitted to consider in setting bail,” Merkl wrote. “Unlike almost all other states, judges in New York are not permitted to detain people due to concerns that they will pose a danger to the community if released. This part of the legislation is consistent with longstanding law in New York, which has prohibited the consideration of dangerousness in setting bail since 1971.”

More recently, after a wave of anti-reform articles swept over the city and state following a series of antisemitic attacks, there were rational responses like this, from Melissa Gira Grant, who reminded the world that the cash bail systems in place for generations, in New York and beyond, were never about ensuring greater public safety anyway. “Having money doesn’t mean you’re not dangerous,” Grant wrote. “The old bail system helped those who could afford to buy their way back to freedom, while punishing those who couldn’t.” 

There were smart pieces, like the one by Eli Hager at the Marshall Project, criticizing the New York Post for a series of misleading articles last year designed to stoke fear about the state’s bail reforms. And there were buck-up commentaries like the one printed this week in the New York Daily News. The reformers “should be proud of what they have done and not shrink in fear when a relatively small number of people carry out some inevitable bad acts,” wrote Human Rights Watch’s Laura Pitter. 

The phenomenon extends beyond bail reform, of course. Last week, Acting Homeland Security Secretary Chad Wolf posted a tweet complaining about “sanctuary” policies designed to protect both public safety and immigrants, writing: “There has been a complete breakdown of law and order in New York City.” Surely that allegation surprised New Yorkers who still are enjoying historically low violent crime rates in the city

Wolf was promptly ridiculed. And it was easy to cite the legitimate reasons why this was so. There is no breakdown of law and order in New York and there is ample evidence establishing the public safety value of supporting sanctuary jurisdictions, such as the value of encouraging unauthorized immigrants to participate as witnesses in criminal cases. We now know, in a way we did not a generation ago, that the link between immigrants and crime is a fallacy. We also know, in a way we didn’t before, that sanctuary jurisdictions, even those predating the Trump administration, do not sacrifice public safety.

And the pushback from reformers certainly extends beyond New York or bail reform or even federal immigration policy. Sometimes, the counterpunch comes not in a speech or column but in a court filing. This week in St. Louis, Circuit Attorney Kim Gardner filed a federal civil rights lawsuit, relying in part on a law designed to thwart the Ku Klux Klan, alleging that she is the victim of a racist conspiracy by local officials and police union executives. It’s hard to see how Gardner will win her extraordinary case. It’s not hard to understand why she brought it. 

She’s fighting fire with fire, which explains in part why Gardner filed the lawsuit when she did. In town this week for a university panel discussion were other black female prosecutors like Baltimore’s Marilyn Mosby and Boston’s Rachel Rollins, both of whom have endured waves of controversy and confrontation in their brief tenures. That’s another new and encouraging sign for reformers. They don’t have to do it alone anymore, because local righteous causes quickly become national ones.

The views expressed are the author’s own and not necessarily those of the Brennan Center.