Why Bail Reform is actually harming those it sought to help, and everyone else too.

For those of you who forgot what the issues were before Covid, one of the most pressing was the enactment of Bail Reform in NY State on January 1, 2020. As I understand it, the law was enacted to ostensibly prevent low income defendants from languishing in jail while they await trial. Certainly, a worthy goal on the face of it. But as with almost everything else the State Legislature does, they take a good idea and push it way too far. By that I mean they have effectively eliminated bail for most offenses. This is not a good thing. Let me explain;

To begin with, why does anyone obey the law? Most people would say it’s because they fear the consequences if they get caught breaking it. But that fear is usually misplaced. The odds of being caught are actually quite small. Even with murder, 50% of those go unsolved. Instead, I would say that most people do indeed fear the consequences of being caught, but not because they have calculated the odds, but because they know of someone or have heard of someone suffering the consequences. This is an important point. The laws protect us because most of society agrees to obey them. If everyone decided to break the law the Police would be helpless to stop it.

So, let’s take a look at what we have going on now. Some person mugs some other person and beats them up pretty badly. The mugger then goes back and tells their friends about it, because what’s the point of being a bad ass if no one knows? Their peers probably congratulate them on their success because that’s what is socially acceptable. But most of them probably don’t go out and duplicate the action, again because they fear getting caught. But since this is the age of the cell phone and everyone has a camera, the mugger did not anticipate that someone had the whole event on video. That person bravely goes to the Police with the video and the Police soon arrest the mugger. Word of their arrest soon spreads and everyone’s first response is that they are glad it wasn’t them who got arrested. Enter Bail Reform. Later that day or the next the mugger is released back out onto the street with a desk appearance ticket. Basically, an order to appear in court at a certain time to answer for the crime. Now the word gets out among the mugger’s friends that they are back on the street. What happens to the opinion of the mugger’s friends? Probably not much in this one particular case. But repeat the process a few more times among the group and soon the paradigm shifts. Soon the entire group now sees that mugging someone is a quick and easy way to get cash. But let’s take this a bit further. Suppose the poor person who was mugged sees the mugger on the street when they get out of the hospital? What are they going to think? What are they going to do? Not much mystery here. They are going to hide and be afraid for their life. They may even recant their testimony that a mugging even happened. Next, suppose the mugger remembers who took the video and gave it to the Police? Again, no mystery here either. Bad things happen to them. Pretty soon what you end up with is a defacto “government” in the area of the crime. A “government” that tells people what they can and cannot do and metes out punishment for not obeying it’s rules.

None of this should sound exotic or unusual. This situation currently exists in many parts of the State even before Bail Reform.

Now, aside from that scenario, which I suspect that apologists for the law would say is overblown, how has Bail Reform actually hurt the folks it was meant to protect? Well consider the associates of the mugger in the above scenario. Let’s postulate that one of them is a recent addition. A kid that might be encountering some trouble in school or at home and is just exploring the world outside “the straight and narrow”. A kid that at this point is basically a good kid and just needs a small incentive to continue their development in a law-abiding way. What happens to that kid? Not much of a mystery there either. That kid now sees there is a “career” outside the law. Chalk up another lost life.

What about the world outside of the above scenario? Those of us who have never had to think about this probably go on with out lives ignoring it. But we do make certain almost unconscious changes to our behavior don’t we? We learn to avoid certain areas. We might tell our kids to make sure they have at least some money in their pockets in case they get mugged, just so they don’t get beat up badly. We call it “Mug Money”. Really, it’s a thing, look it up. As we make these accommodations, we grow to resent them. This in turn forces us to look more harshly on the areas that have fallen victim to the “government”. Overlooking the innocent folks who are trapped there through no fault of their own. How is it not a crime to allow them to have to live like that? You see this all the time. Innocent children that are shot and killed as a byproduct of the “government” conducting it’s business. We all look the other way because it’s just something that happens “over there”. Pretty soon “over there” starts coming “over here”. If there are no consequences for breaking the law, soon it’s the normal way of doing business. You see this now with the hoards of dirt bike riders that roam the streets in droves unfettered by the Police because “they can’t stop them”. I could go through a whole list of behaviors that were once thought to be unacceptable but are now accepted because it’s “normal”.

So, back to the original problem. What to do about the poor kid languishing in jail because they don’t have Bail money? Well, while Bail Reform might have been a good intentioned attack on that problem, I submit that it was misguided. It tried to address the symptom, the kid being kept unfairly in jail, and not the disease. The disease, the real problem, is why does that kid have to spend so much time in jail waiting for their day in court? Why does it take two years for someone to go to trial? For that matter why are there people who are walking around freely that have been arrested 40 even 50 times? Simple! The problem is The Court System! It does not function smoothly or efficiently enough to provide a fair trial in a reasonable amount of time. But to fix it costs money. Bail Reform was done by decree. It allegedly didn’t cost anything. But is that true? I think it’s costing the underprivileged quite a bit as the life they thought they had is rotting away. It’s going to cost us all eventually as we are slowly ceding parts of our city to shadow “governments”.

Once again, I can hear the apologists cries ringing in my ears, “All you’ve spoken about are the bad people. What about the good innocent people who get swept up and wrongly put in jail?” So, let me address that. By definition, all people awaiting trial are presumed to be innocent. But changing the Court system so that it can provide a speedy trial will assure that all people are moved through the system quickly and no one just waits there.

In summation, my argument here is that by releasing everyone back out onto the street we put the victims of a crime in more physical danger, we also discourage witnesses from testifying against the perpetrators who are free to victimize them again, we adjust society’s tolerance for a degraded quality of life, and provide incentive for those on the “moral margin” to cross over into a life of criminality. We also encourage people to establish an alternate code of conduct that in essence is a shadow government.

My wish is that the Bail Reform provision be completely repealed. But if that’s not possible, then I would like to see it modified to give judges the capability to detain defendants that they consider to be a danger to the community. But regardless of what is done or not done with Bail Reform, Court Reform is imperative! It should happen as quickly as humanly possible. The current Court System is way too inefficient and lethargic. It is immoral, and probably unconstitutional to deny defendants a speedy trial. As demonstrated above, it is also bad for society in general.

The best part about enacting Court Reform is that you can do it without repealing Bail Reform. If a person could get a trial in a week, then why would they even need bail?

Just a crazy thought.

Please post your comments/responses on the original Facebook Post. If you want to contribute a real position, let me know.