New York's bail reform laws are once again making headlines for all the wrong reasons. The story of Keaira Bennefield, a mother of three shot and killed by her ex-husband less than 24 hours after he was released from jail, has shocked the Empire State. Bennefield's ex had been arrested for violently attacking her and was a clear threat to her safety given his long history of domestic violence and abuse. But he was only charged with misdemeanors, and under New York's new bail reform laws, the judge was not allowed to keep Keaira safe by detaining her ex-husband while he awaited trial.
These laws fully eliminated bail and pre-trial detention for a slew of misdemeanors and many felony offenses. They also mandate pre-trial release for misdemeanor and "non-violent" felony offenses, giving judges no choice but to release arrestees before trial even if they are a clear flight risk or serious threat to public safety.
To be sure, the pre-trial detention system needs reform. If an arrestee poses little to no risk to the community, their liberty should not depend on whether they can afford bail. But restrictive, "one-size-fits-all" remedies that leave no room for judicial discretion, like those in New York, are causing more harm than good.
It's time to take advantage of evidence-based tools and practices to keep our streets safe, limit unnecessary pre-trial incarceration, and reduce recidivism.
The criminal justice system's first and foremost priority should be to protect public safety, a goal at odds with the traditional pre-trial bail system that determines who gets released based on one's ability to pay.
Under this system, potentially dangerous and violent individuals can simply buy their way out of jail if they have the cash. Meanwhile, others who are not threats to public safety are denied their freedom simply because they are poor and cannot afford bail—even though they can be safely monitored outside of jail.
All this does is plunge many people even further into poverty with no benefit to public safety. According to the Brookings Institution, pretrial detention decreases the probability that a defendant will find employment by 9.4 percentage points, even four years after the bail hearing. Defendants detained pre-trial lost $29,001 in income on average over the course of their lifetime, Brookings found.
The economic fallout from bad bail practices fuels not only poverty, but crime as well; pre-trial detention is a risk factor for recidivism, as are poverty and unemployment.
And it hurts taxpayers. Pre-trial detention costs local governments close to $14 billion per year. Considering more than 60 percent of defendants are detained prior to trial simply because they cannot post bail, oftentimes a very small amount of money, this excessive spending is not essential to public safety.
It's true that financial bail in the appropriate circumstances can reduce a person's flight risk, and calls to eliminate the practice entirely are misguided. But the current system's overreliance on cash bail is putting the wrong people in jail, undermining public safety, and decreasing the chances of successful re-entry into society.
The experiment in New York has demonstrated as much.
The original bill adopted in 2019 "eliminated money bail and mandated release for 90 percent of all arrests statewide." The results were terrible and immediate. Just a couple of months later, the state had to roll back some of the reforms to stem a new crime wave.
But the rollback did not go far enough. New York law still handcuffs judges and prosecutors, forcing them to release individuals based on arbitrary, one-size-fits-all standards—even when they believe they are a danger to public safety or a flight risk. Not only do specific tragedies like Keaira's expose the major flaws in New York's bail laws, but recent data shows that re-arrest rates have increased since the reforms were implemented, indicating a decrease in overall public safety.
There are smarter ways to reform the pre-trail system. The first step toward fixing the mess in New York is to allow judges to use their discretion to detain people who are a risk to public safety or a flight risk.
Additionally, the system needs to stop penalizing people just because they are poor. A better approach would be to establish presumptions of release and presumptions of non-financial conditions of release for certain offenses while allowing judges to override such presumptions if they have good cause. To help judges make these critical decisions, they should have access to evidence-based risk assessment tools and algorithms.
New York policymakers might look to their neighbors in the Garden State for an example of comprehensive pre-trial reform done right. New Jersey gives judges broad discretion to detain dangerous individuals and flight risks before trial. Judges also have access to a risk assessment tool that helps them make this determination, and the results have been outstanding. The state has significantly reduced its jail population without increasing crime and has increased the proportion of dangerous individuals incarcerated pre-trial.
Reforms like these will save the taxpayer money, reduce poverty and recidivism, and let our law enforcement focus on what matters—safety.
The pre-trial system needs a change. Let's learn from New York's mistake and get it right.
Greg Glod is an Americans for Prosperity fellow focused on public safety and criminal justice reform.
The views expressed in this article are the writer's own.
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