Harris, 30, was arrested three times in a span of several days, starting with an incident in late December. She was apprehended after allegedly slapping three Orthodox Jewish women in Brooklyn, which came amid heightened fears in the area over a spate of anti-Semitic violence. None of her charges required bail under the law that took effect Jan. 1.
Attorneys who represented Harris have said she had mental health issues that previously required medication and “psychiatric attention.” Instead of jailing Harris, a judge ordered her to be hospitalized, and she is now getting treatment.
To opponents of the law, the Harris case exemplifies flawed legislation that makes communities less safe by stripping judges of their power to enforce bail and enabling defendants to be released, only to reoffend.
The law’s supporters argue it’s a long-overdue corrective to what used to be a two-tiered system of justice that once disproportionately hurt poor and minority communities but now keeps vulnerable people like Harris, who have not been tried or convicted, out of jail and free to get treatment.
“Bail reform addresses people who are legally innocent,” said Porsha Shaf’on Venable, a criminal defense attorney in the Bronx and board member of the Black Public Defender Association. “What’s changed is now there’s no difference between how the poor and the wealthy are treated.”
Focused efforts to change the U.S. cash bail system date back almost two decades, with some of the biggest strides coming in the past few years. Some states, like New Jersey, have overhauled their bail systems, while California lawmakers have voted to eliminate cash bail altogether. (The California law is on hold pending a voter referendum later this year.) A ruling is pending in the Nevada Supreme Court over that state’s bail reform law.
Meanwhile, some major counties — like Cook County, Ill., and Harris County, Tex., encompassing Chicago and Houston, respectively — have reformed their bail practices.
New York’s law does not eliminate cash bail entirely. Instead, judges must release people accused of misdemeanors and nonviolent felonies, or impose non-monetary conditions, like electronic monitoring or supervised release, to ensure they return for their court date. Judges can still impose bail for violent felonies if they determine non-monetary restrictions won’t be enough to summon a defendant back to court.
New York’s bail system, even pre-reform, stands out in one key way, said Kellen Funk, an American legal historian at Columbia Law School in New York.
“New York is among the very rare jurisdictions that by statute, does not permit judges to consider 'dangerousness’ or public safety in determining release conditions,” Funk told The Washington Post, noting bail is an even older legal system than the jury. “For centuries, bail was just for ensuring the appearance of the accused at trial.”
Bail reform is rarely a friction-free process, but Funk said states like New Jersey have enacted statewide reform that largely drew on broad bipartisan support, in part because of how reforming cash bail systems can help to reduce mass incarceration. New York’s law was estimated to lead to a 40 percent reduction overall in the state’s pretrial jail population, according to a report last year by the Vera Institute for Justice. Opponents to bail reform typically came from more obvious sectors, like the bail bonds industry where bondsmen said eliminating the system would destroy their livelihood.
Sheriff Jeff Murphy of Washington County serves as president of the New York State Sheriffs Association, a group that opposes the new law. Murphy cited New Jersey’s path to bail reform, saying it took two years, a task force and rounds of tweaks before it was approved. He told The Post he feels stakeholders, like law enforcement officials, did not get to adequately weigh in on the law. (Advocates and some experts say this is untrue: “Their testimony is on record,” Funk notes.)
“In our mind, it was hastily passed as a one-size-fix-all law when a lot of us in Upstate New York have been running jails, treating inmates for opioid addiction and using alternatives for incarceration,” Murphy said. “We were doing just fine before, and this law hinders us.”
Murphy said he was able to reduce his jail population without New York’s bail reform law by offering alternatives to incarceration. When he could keep people in his system, he said he used detention as a way to connect many detainees from an area battered by the opioid crisis with addiction treatment that they couldn’t or wouldn’t have accessed otherwise. Now, nonviolent drug offenders in his jurisdiction can’t be held on bail, and Murphy said he can’t get them help.
“I’m certainly not saying that’s what jails are for,” Murphy said. “But the law is an overcorrection, in my opinion, of the bail system.”
He pointed to cases in New York City as further examples of the law’s failure.
“A guy in NYC who is charged with five bank robberies. An assault on an 85-year-old woman, who was assaulted and robbed. To me, those are not nonviolent crimes,” he said.
Shaf’on Venable, the Bronx public defender, said such arguments are cherry-picked anecdotes that ignore the law’s broader success.
“Hundreds and thousands of people have been released under the new bail system, and hundreds of thousands have returned to court,” Shaf’on Venable told The Post. “People are really focusing on the few cases that in have been in news.”
The pushback to the law has even divided Democrats in the New York legislature. Factions include New York City-based lawmakers who are fiercely defending the law from calls from fellow party members — like Long Island Democrats who could be politically vulnerable to attacks by Republicans come November — to amend it. Newsday reports lawmakers who back changing the law have proposed eliminating all cash bail for all misdemeanors except for hate and sex crimes; subjecting all crimes involving a fatality to bail conditions and giving judges in all other cases discretion to hold defendants on bail or impose non-monetary conditions for release.
“I think that they’re assuming judges apply the law equally,” Shaf’on Venable said. Even well-intentioned judges and prosecutors are susceptible to unconscious bias and implicit racism, she said.
The latest salvo in defense of the law came Tuesday when the Black Public Defenders Association issued a sharp rebuke of bail reform critics, calling them “tough-on-crime proponents” engaging in “classic fearmongering.”
“[They] refuse to admit that money is used to unfairly keep Black and Brown people locked in cages,” the association wrote. It argued the new law combats race and wealth-based pretrial detention decisions, making for a fairer system.
“Perhaps true to form, New Yorkers seem to be much more strident about the reform and the arguments are taking place in the newspapers and legislative halls rather than the courts” observed Funk, the legal historian.
Murphy, the sheriff in Upstate New York, predicts the law will get debated with the next state budget and become a purely political issue rather than a criminal justice one — meaning the knock-down-drag-out fight over bail reform will continue for some time.
“It honestly can’t get more polarized than it is right now,” he said.