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Cash bail criminalized poverty. Fears about bail reform are misguided.

After a string of anti-Semitic attacks in the New York area, some Orthodox Jews have criticized a new bail reform law which includes a ban on cash bail for nonviolent offenses, which was a major triumph for new Democratic legislators. But the immediate release of a woman named Tiffany Harris, who had slapped three Orthodox Jewish women, and then a fourth person after she was released (under the prior law) without bail, is being held up by opponents of bail reform as an example of the danger they expect the new law to cause. As a result, advocates for the Orthodox community have started to demand that the law be altered or repealed.

But these demands, though understandable, are misguided.

To understand the changes to bail policy, you need to know about Kalief Browder. Browder was arrested ten days shy of his 17th birthday for allegedly stealing a backpack. A judge demanded $3,000, which Browder didn’t have, so Browder waited in prison for his trial for a crime that it became increasingly clear he did not commit. He waited for three years. He spent nearly two of those years in solitary confinement, and that’s not the only abuse he suffered; video from his time at Rikers shows him being assaulted by prison guards and inmates alike.

Browder never recovered. Two years after his release, just four-and-a-half years ago, Browder hanged himself. His mother found the body. His suicide in June 2015 wasn’t his first attempt; he’d tried killing himself three times while at Rikers, during the years the prosecution kept delaying and delaying his trial, during the years he kept refusing to plead guilty, even for sentences of time served.

Kalief Browder went into prison an innocent 16-year-old boy. He came out an innocent 20-year-old man — broken and brutalized by a prison where he never should have been held in the first place, because he couldn’t afford his $3,000 bail.

Browder’s case got national attention, and Governor Cuomo invoked Browder’s name when, in April 2019, he signed bail reform legislation eliminating cash bail for misdemeanors and nonviolent felonies beginning in 2020.

And then, Harris was released without bail despite admitting to police that she’d slapped three Orthodox Jewish women. The very next day, Harris was at it again, arrested for punching a fourth woman in the face — and became the face of the pushback against bail reform: How could anyone defend letting an obvious danger like Harris back out on the street?

There are things to criticize about New York’s new approach to bail. But despite Harris, it’s clear that the reforms were a crucial and welcome development.

New York enacted bail reform in April 2019 because Kalief Browder’s case wasn’t an isolated incident. In 2018, according to the Vera Institute of Justice, an average of 24,000 people a day were sitting in New York’s jails, 70% of them in pre-trial detention because they were denied or could not make bail. The median misdemeanor bail for prisoners stuck in jail in Buffalo? Just $1,000. In New York City? $5,000.

These people were in jail not because they’d been found a risk to society but because they were poor. If you committed the same crime and had the cash, you were free to go home while you awaited trial. But if you were too poor to make bail, you would sit in jail until you went to trial or plead guilty. The only difference between the defendants who walked free before trial and the ones who didn’t was what was in their wallets.

That was no accident. In 1971, New York passed a different type of bail reform: barring courts from considering whether a defendant was a risk to the community when they set bail, which was meant only to ensure that the defendant showed up at trial. New York is the only state in the country that prevents judges from considering that type of risk in deciding whether to set bail, remand the defendant into custody, or release them outright, and it’s that law — not the 2019 bail reform — that allowed Tiffany Harris back onto the street.

All told, New York’s old approach to bail wasn’t keeping people safe — it was criminalizing poverty, and disproportionately affecting communities of color.

Lawyers often say that bad cases make bad law — judges and legislatures overreact to outlier cases, making general rules that cover the extreme situation well but are poor fits for the ordinary case. And it’s possible that the outrage of the Kalief Browder case led to issues in the bail reform law that can be reasonably criticized — primarily the decisions about which categories of crime bail would be allowed for, and the maintenance of New York’s bar on risk assessment in setting bail.

Under Section 4 of the new law, judges can hold arrestees on cash bail only in a limited universe of cases: violent felonies other than burglary, witness tampering or intimidation, Class A felonies and conspiracy to commit Class A felonies, felony or child-related sex offenses, domestic violence related violations, and terrorism charges.

In all other cases, under Section 3 of the same law, judges must release defendants, without supervision or other conditions of release, unless they find that doing so “will not reasonably assure” the defendant’s return for trial. It’s fair to criticize this approach for ignoring the risk a defendant like Harris poses to the community as a reason to set bail, or to argue that other types of crimes should also be included on the list of crimes for which bail can be set.

But bail reform would need only to be tweaked to address those issues, not scrapped, and in America, the thing that determines whether a man or woman sits in jail or walks free should never be whether they are rich or poor.

Amid the justified concern over anti-Semitic attacks, we as Jews should be vigilant not to allow Tiffany Harris to become the bad case that drives the pendulum swing back to bad law in the other direction.

Akiva Cohen is a commercial litigator, father of five, and inveterate opinion-haver based in New York. Share your opinions with him on Twitter @AkivaMCohen


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