As Americans, we’ve been sold a false choice between incarceration and public safety. However, the evidence is clear that bail does not make us safer.[1] Holding someone in jail pretrial does not prevent crime, and is not necessary to ensure that people who are charged with crimes return to court — despite fear-mongering claims to the contrary. However, locking someone in jail for even a short period can fundamentally destabilize their life and the lives of their family and community. People held in jail for a matter of days are likely to lose their jobs, lose custody of their children, and even their homes. Bail policies that result in thousands of New Yorkers being held in pretrial detention are patently unjust, while doing nothing to make our city safer. The financial resources required to maintain New York’s carceral system should be invested in our communities instead.

Cash bail is deeply discriminatory. Nationally, young Black men are 50% more likely to be detailed pretrial than white men.[2] Bail has become one of the many instruments of our criminal punishment bureaucracy that targets and oppresses people of color and low income people. Even for people who are able to buy their release, predatory bond companies use the bail system to extort money from communities that are already overly targeted by the criminal legal system. 

Furthermore, bail undermines one of the core tenets of our democracy. The presumption of innocence is so fundamental that it is enshrined in our Constitution. Everyone should be presumed innocent within our courts, not just the wealthy and well-connected. The money bail system is premised on an enormous logical and ethical flaw: how can a system that assures freedom only to the wealthy possibly keep us safer? If two people are accused of the same crime but one has a larger sum in their bank account, that person is far likelier to walk free pretrial. Requiring people to pay for their freedom has the effect of rewriting the presumption of innocence to a “presumption of innocence only for those who are wealthy.”

As DA, I will never seek money bail. In all cases, the presumption will be that people accused of crimes will be released to their own recognizance. When there is credible evidence that someone is truly a flight risk, my office will use the least restrictive means possible to ensure their return to court, recognizing that we should not overuse electronic monitoring, which is a continuing intrusion into people’s lives. While release will be the default, I recognize that remand may be necessary in the rarest of circumstances, as a last resort. I am cognizant of the overuse of remand by progressive prosecutors and jurisdictions, and will require any ADA seeking pretrial detention to get approval from me personally or a high-level supervisor.

I will advocate for legislative change in Albany to abolish cash bail statewide and reform the entire pretrial system so that everyone, regardless of their race or the amount of money in their bank account, is presumed innocent and treated fairly.

Money bail does not make us safer

A significant body of evidence indicates that someone released awaiting trial is highly unlikely to commit any crime during that time period, and that releasing people pretrial does not increase local crime rates.[3] Data from federal courts show that 98% of people accused of federal crimes do not engage in criminal conduct when released pretrial.[4] In fact, the cash bail system may actually make us less safe in the long term because of the enormous harm that it inflicts on people accused of crimes and their families and communities. Several studies have indicated that when someone is forced to spend even a few days in jail, the consequences for their life can be enormous: they may lose their job, house, even custody of their children.[5] This type of destabilization can lead to crimes of survival to meet basic needs to address the subsequent housing and food insecurity. 

People who are detained pretrial also face increased pressure to plead guilty in order to avoid further jail time. This is a feature of the system, not a bug — using the threat of jail time, prosecutors coerce people who are accused of crimes into guilty pleas even when there is insufficient evidence to convict. Those who do plead guilty are then saddled with a criminal record, which further diminishes their likelihood of remaining employed and housed. The destabilizing impact of being incarcerated pretrial may increase the likelihood that someone accused of a crime will be charged again in the future, creating a vicious cycle that makes us all less safe. Pretrial incarceration has cascading effects within communities: a recent study found that when a county increases its pretrial detention rate by 0.1%, the rate of death from illness and suicide within that county increased significantly.[6] These disturbing results show how the harms of incarceration spread throughout the networks and communities of people who are incarcerated.

Furthermore, the idea that bail is needed to ensure that people return to court is a dangerous myth. The evidence shows that the vast majority of people accused of crimes return to court when released without bail, which implies that most cases do not require any form of pretrial services or detention to ensure return to court.[7]

Using bail as a method of pretrial detention is not only ineffective and unethical. New York state law commands that an individual’s perceived risk of public harm should not and cannot, by law, be a factor when determining the conditions of their pretrial detention in New York. Nonetheless, the current DA’s office treats bail as a form of preventative detention, rather than using bail or pretrial detention in only the most extreme cases in which the defendant’s “flight risk” is stringently demonstrated. Abolishing cash bail and returning to a presumption of release in all cases is the only way to right these wrongs.

The cash bail system is racially discriminatory

Bail poses a serious safety risk to people who are detained pretrial in New York City’s dangerous jails. Kalief Browder’s horrifying experiences being locked in solitary confinement for two years after being accused of stealing a backpack, in part because his family was unable to post $3000 bail, is a tragic example of the harm that bail causes.[8] Money bail disproportionately impacts people of color, fueling the pervasive problem of structural racism within our criminal legal system.

The DA’s office under Cy Vance considers a nebulous notion of “risk of danger to the public” when seeking bail. Our criminal legal system is premised on the criminalization of Black and Brown people, and people of color are far likelier to be seen as “dangerous.” Black men in particular are significantly likelier to have criminal histories due to systemic over-policing and mass incarceration. In practice, this means that Black men are given bail and detained pretrial more frequently than their white counterparts. Due to the racial wealth gap that has resulted from centuries of systemic oppression, Black and Brown people accused of crimes are less likely to be able to post bail than white people are. In New York City, studies have found that Black people accused of crimes were 10% likelier than white people to be detained pretrial, even when controlling for past convictions and the seriousness of the alleged crime.[9]

One of the dangers of reforming the bail system is the risk of replacing it with something worse. California’s efforts to abolish cash bail faltered when it became clear that the result would be a more punitive system or pretrial detention. Replacing bail with a “dangerousness” standard will simply perpetuate the disproportionate pretrial detention of Black and Brown people. In practice, pretrial detention systems that aim to determine a person’s “dangerousness” rely on factors like prior arrests and convictions. Since Black and Brown communities are overpoliced, people from those communities are far likelier to register as “dangerous” using these types of metrics. Risk assessment algorithms are inherently racist — in short, it’s impossible to take the racial bias out of the system by using data generated by a system shot through with racial bias.

The cash bail system is premised on exploiting low-income Black and Brown communities

Cash bail fuels a $2 billion dollar industry built solely on the premise of exploiting people accused of crime. It is discriminatory and predatory, and serves as yet another method by which the justice system exploits low-income people, disabled people, and people of color. 

By law, bail is to be refunded when a person accused of a crime returns to court. However, many people are unable to pay the full amount of bail set for them, and must instead turn to private bail bond companies: according to a report released by the New York City Comptroller’s Office, half of all bail postings in 2017 were through private bail bond agents.[10] Bond companies charge people accused of crimes steep, non-refundable fees of up to 10% of the bond — money that will never be returned. By taking on a bond, the bail bond company holds significant power over the person who has been charged. 

These companies have used their financial leverage over people accused of crimes to charge exuberant late fees and interest rates, impose significant non-court appointed limitations of the accused’s liberties (such as requiring ankle monitors or subjecting them to curfew), and seize collateral put up against the loan with little notice.[11] Furthermore, they retain complete discretion to petition judges to revoke bail and have people sent to jail, all while pocketing the premium. 

These companies also have complete discretion to decide whether or not to cover a person’s bail at all. When a bail bond company refuses to help an individual meet bail, they are often left on their own, commonly resulting in long stays in jail. In many cases, a bondsman may decide not to cover a person’s bail at all — they may deem an individual to be too risky, or the financial rewards too low. In that case, people accused of crimes are left on their own unless a bail fund is able to cover the cost of their freedom. These cases can result in lengthy pretrial detention for people with bail amounts of $500 or less, since bondmen may decline to take on cases with low financial rewards.

This deeply exploitative industry is indicative of the ways in which the cash bail system — and the criminal legal system more broadly — is designed to turn a profit through the criminalization of Black, Brown, and low income communities. The private bonds industry has flourished as it has filled prisons and drained poorer communities of their wealth. Abolishing cash bail is one step toward dismantling the punitive criminal punishment bureaucracy that has wreaked enormous damage on Black, Brown, and low income New Yorkers.

Pretrial detention wastes resources that should be invested in our communities

In 2019, prior to New York’s bail reform laws, judges chose to set bail or remand a person accused of a crime in approximately 23,000 cases, including 7.4% of misdemeanor cases and 35.1% of non-violent felonies.[12] New York’s bail reform laws, which were partially rolled back in 2020, temporarily decreased the number of people held in pretrial detention. But recent reports have shown that there are still approximately 5,000 people held in city-run jails.[13]

The economic costs of holding all of these people in pretrial detention are shockingly high. It costs over $925 to incarcerate someone for a single night.[14] The resources that we spend locking up people who haven’t been convicted of anything could be spent on affordable housing, quality public education, and other social services — all of which address the root causes of crime and make our city safer.

Policy Changes

• Under my leadership, the District Attorney’s office will never seek money bail.
• I will always advocate for the least restrictive means necessary to ensure return to court, with a presumption of release in ALL cases. 
• I will advocate for legislative abolition of cash bail without replacing it with a racist “dangerousness” standard.
• Though I cannot unilaterally close Rikers Island, I am fully committed to decarceration and will only use jail as a last resort. I have committed to reducing the number of people incarcerated by 80% and am also strongly opposed to building new borough-based jails.

[1] See, for example: Ouss, Aurelie and Stevenson, Megan, “Bail, Jail, and Pretrial Misconduct: The Influence of Prosecutors,” (June 20, 2020), Available at SSRN: https://ssrn.com/abstract=3335138 or http://dx.doi.org/10.2139/ssrn.3335138. Also: Cassel, Paul, and Richard Fowlers, “Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois,” (2020),  https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1189&context=scholarship. And: Stemen, Don and David Olson, “Dollars and Sense in Cook County,” https://www.safetyandjusticechallenge.org/wp-content/uploads/2020/11/Report-Dollars-and-Sense-in-Cook-County.pdf.

[2] Sawyer, Wendy, “How race impacts who is detained pretrial,” Prison Policy Initiative, https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/.

[3] See footnote 1.

[4] See dataset: https://perma.cc/LYG4-AX4H.

[5] Digard, Leon and Elizabeth Swavola, “Justice Denied: The Harmful and Lasting Effects of Pretrial Detention,” Vera Institute of Justice, https://perma.cc/Y96D-7977, https://pubs.aeaweb.org/doi/pdfplus/10.1257/aer.20161503, 

[6] Kajeepeta, Sandhya, Pia M Mauro, Katherine M Keyes, Abdulrahman M El-Sayed, Caroline G Rutherford, Seth J Prins, “Association between county jail incarceration and cause-specific county mortality in the USA, 1987-2021,” The Lancet (February 2021), https://www.thelancet.com/journals/lanpub/article/PIIS2468-2667(20)30283-8/fulltext.

[7] Gouldin, Lauren, “Defining Flight Risk,” University of Chicago Law Review (2018), https://chicagounbound.uchicago.edu/uclrev/vol85/iss3/3/. See also: https://perma.cc/LYG4-AX4H.

[8] Santo, Alysia, “No Bail, Less Hope: The Death of Kalief Browder,” The Marshall Project (2015),  https://www.themarshallproject.org/2015/06/09/no-bail-less-hope-the-death-of-kalief-browder.

[9] Kutateladze, Besiki, and Nancy Andiloro, “Prosecution and Racial Justice in New York County — A Technical Report,” Vera Institute of Justice (2014), https://storage.googleapis.com/vera-web-assets/downloads/Publications/race-and-prosecution-in-manhattan/legacy_downloads/race-and-prosecution-manhattan-technical.pdf.

[10] Office of the New York City Comptroller,  “The Public Cost of Private Bail: A Proposal to Ban Bail Bonds in NYC,” (2018), https://comptroller.nyc.gov/reports/the-public-cost-of-private-bail-a-proposal-to-ban-bail-bonds-in-nyc/.

[11] Silver-Greenberg, Jessica and Shaila Dewan, “When Bail Feels Less Like Freedom, More Like Extortion,” New York Times (March 2018), https://www.nytimes.com/2018/03/31/us/bail-bonds-extortion.html.

[12] Rempel, Michael and Krystal Rodriguez, “Bail Reform Revisited: The Impact of New York’s Amended Bail Law on Pretrial Detention,” Center for Court Innovation (May 2020), 

https://www.courtinnovation.org/sites/default/files/media/document/2020/bail_reform_revisited_05272020.pdf.

[13] Closson, Troy, “The High-Risk Group Left Out of New York’s Vaccine Rollout,” The New York Times (January 2021), https://www.nytimes.com/2021/01/26/nyregion/new-york-vaccine-prisons.html.

[14] Office of the New York City Comptroller,  “The Public Cost of Private Bail: A Proposal to Ban Bail Bonds in NYC,” (2018), https://comptroller.nyc.gov/reports/the-public-cost-of-private-bail-a-proposal-to-ban-bail-bonds-in-nyc/.