The New Jim Crow of Proposed Bail Rollbacks in New York

New York State bail reform, as it was enacted on January 1, 2020, significantly reduced classism and unnecessary confinement by eliminating bail and pretrial detention for most non-violent offenses. This new law prevented people accused of minor offenses from being needlessly incarcerated simply because of an inability to pay bail. However, the proposed rollbacks on New York State bail reform will squander this once-promising future of pretrial judicial equality. These rollbacks will give judges even more power to determine whether a defendant should receive pretrial detention through a risk assessment or a dangerousness standard.

“Risk assessment” and “dangerousness standard” might sound good for public safety, but in practice they are in fact highly discriminatory and do little to increase the safety of our communities. In these evaluations, there are several key “risk factors,” one being prior arrests and convictions. Assessing risk and dangerousness through a person’s history of arrests and convictions is a proxy for racial bias. Innocent working-class people of color across the United States are frequently and unfairly arrested. By a risk assessment or a dangerousness standard, people of color will be disproportionately considered “high-risk” and detained prior to a resolution of their case (in theory a trial, but almost always a plea deal) . Even if we suppose that the evaluations are used for defendants who commit the crime that they have been arrested for, people of color will still be disproportionately targeted.

A 2008 analysis on Habitual-Offender Sentencing found that black defendants are 28% more likely to be charged as habitual-offenders than white defendants with similar criminal records. The evaluations will only exacerbate the already present racial disparities in the criminal justice system. Furthermore, labeling a person a high risk without due process also threatens their human right to the presumption of innocence. If a judge deems defendants a risk to society before they have been sentenced, they are no longer ‘presumed’ innocent. This jeopardizes their human rights. It empowers prosecutors to offer harsher pleas, which defendants already locked up are likely to accept. And harsher pleas mean harsher sentences.

The rollbacks on bail reform will eliminate wealth-based incarceration by removing bail but, as shown, will also exacerbate race-based incarceration. This is not unusual for the United States’ reforms, which have a long history of creating changes to help white people on the backs of people of color. An example of this tactic is the redlining project. This project was implemented during the Depression to create affordable mortgages for white people in safe, stable, historically white neighborhoods. The end result was high-cost mortgages for people of color in their neighborhoods. This segregational Jim Crow policy systematically divided cities and towns into affluent white neighborhoods and poor neighborhoods of color. Similarly, the new risk assessment proposals could divide our judicial system into a structure for most white people to be free and many people of color to be detained. Rolling back bail reform will only add to the already present racial inequality in our judicial system—a situation that Michelle Alexander has famously called the New Jim Crow. Do we want our initially-promising bail reform to become the 21st century’s redlining? I think not.

We at ENJAN ask you to help resist the rollback. If you have Twitter or other social media please reach out to your elected officials to support bail reform: