“Fixing” Cash Bail Reform with Judge’s Discretion Is No Fix at All

March 9, 2020

New York’s cash bail reform is under attack. Following a massive fear-mongering campaign by the cash bail industry and other reform opponents, many are calling on legislators to give judges the discretion to detain people they believe to be a threat.

But this push is woefully misguided — and dangerous.

For one, restoring discretion to judges would re-entrench racism and arbitrariness in the criminal justice system. Already, communities of color are unfairly targeted for arrests — and more likely to be detained pre-trial. One analysis from the Vera Institute of Justice found that black defendants in NYC were 10 percent more likely to be detained than similarly-situated white defendants. And often, the factors judges use to determine “dangerousness” disproportionately disadvantage black and brown people.

Furthermore, cash bail was never meant to keep people accused of crimes off the streets; it was supposed to ensure people returned for their court date. But over time, cash bail has morphed into a tool to keep people locked up. By restoring discretion to judges — who have repeatedly set bail at levels poor people could never afford — bail would continue to serve as a guilty-before-convicted punishment that contradicts the core of our criminal justice system.

New York has taken major steps to make its criminal justice system fairer and more just. In the last year alone, we passed cash bail reform — the most progressive in the nation — and agreed to close the prison on Rikers Island. We must pursue policies that bring New York forward, not backwards.

We are thankful to the lawmakers who are refusing to backtrack on bail reform. We implore other legislators to do the same.

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