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NY Legislators Should Focus on Reducing Pretrial Incarceration

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New York is now considering landmark bail reform legislation. Proposed reforms would eliminate money bail and would allow judges to detain people before trial in limited circumstances. Ending money bail is important, but on its own it is not enough to achieve a fair and just pretrial system. Reducing pretrial detention must also be a central goal of the legislation. This can be done only through clear limitations on when and how judges can send people to jail pretrial.

In New York and across the country, bail reform is gaining momentum as the public learns how the money bail system discriminates based on wealth and race. Everyone can agree that no pretrial system should treat people differently based on the money in their bank accounts or the color of their skin. But in New York today, rich people accused of crimes can write a check and walk free while they await trial, while those who cannot afford to post bail must languish in jail for months or years until their case is resolved. Money bail disproportionately harms black, Brown and Latinx people accused of crimes who often have less personal and familial wealth than their white counterparts. Implicit and explicit racial biases make those disparities worse. Indeed, recent empirical research has found that money bail is imposed more often on black people than on white people and that black people receive higher bail amounts than white people.

Lawmakers in Albany should remember that the most grievous harm that money bail inflicts is jail.  Bail reform is not just about money—it’s about mass incarceration. As we detail in our latest report , bail reform legislation should aim to both eliminate money bail and to reduce the number of people incarcerated pretrial.

In recent decades, the pretrial incarceration rate in the United States has skyrocketed beyond all historical and international norms. Courts have increasingly imposed unaffordable money bail that forces defendants to remain in jail until their case is resolved. Today, with just over 4% of the world’s population, the United States has nearly 20% of the world’s pretrial jail population — almost half a million people.

Pretrial incarceration devastates communities, harms public safety and undermines the rule of law. People jailed pretrial lose their jobs, their homes and custody of their children. Innocent people who are detained pretrial become so desperate to get out of jail that they will plead guilty to crimes that they did not commit in exchange for a sentence of time served. In other words, innocent people who mount a defense and are acquitted can face more jail time than innocent people who plead guilty.

Despite being touted as a means of preventing crime, pretrial detention’s relationship to crime is mixed at best. Social science research has found that pretrial detention causally increases someone’s propensity to commit a crime in the future. This effect has been found even with jail stays as short as two days. Unless pretrial detention is used carefully and sparingly, the practice undermines public safety by destabilizing people’s lives and causing more crime.

Unwarranted pretrial incarceration also betrays our legal system’s founding principles. Across the globe, there are governments that determine guilt and mete out punishment without the hassle of trials, defense attorneys, or rules of evidence. But a free society incarcerates people only after they have been convicted of crimes, with rare and carefully limited exceptions. Even children know the legal maxim that people accused of crimes are innocent until proven guilty. Pretrial incarceration flips this notion on its head by jailing people before giving them the opportunity to defend themselves and without requiring the government to prove its case. In the rare instances where a defendant is a serious threat to someone’s safety, our Constitution requires the government to prove that pretrial detention is necessary at an adversarial hearing with strict procedural safeguards.

New York is poised to enact one of the most transformative bail reform laws in the nation. But if negotiations in Albany result in the current money bail system being replaced with a regime of expansive pretrial incarceration, then lawmakers will have squandered a once-in-a-generation opportunity to reverse the tide of mass incarceration. As lawmakers consider the bold action of eliminating money bail, they must also find the courage to reduce money bail’s principal harm: the jailing of people who are presumed innocent.

Brook Hopkins is executive director of the Criminal Justice Policy Program at Harvard Law School and Colin Doyle is a staff attorney.