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Bail is not supposed to be punitive, but neither should reforming bail be

BY ED MULLINS & EDMUND SMALL

New York’s bail system has been broken for a long time. Law enforcement professionals, well-intentioned advocates and policymakers agree that too many lives have been ruined — or lost — as a result of the travesty of languishing in jail for the wrong reasons, or no real reason at all. Enormous credit is due to those who have long carried this banner at the local, state and federal levels of government.

But recent changes to how bail works have, unfortunately, become more about politics than criminal justice policy, taking a troubling turn towards the practically unworkable. The diverse membership of the Sergeants Benevolent Association, as frontline policing leadership at the point where policy becomes on the ground practice, are well-positioned to urge caution in implementing these changes.

Judges call us to share their frustrations, shocked that they are being told by their higher-ups not to set bail for most cases, even those involving threats and violence. Terrified of being labeled “not progressive,” judges are releasing accused criminals with long rap sheets and histories of committing additional crimes between court dates.

Instead of a productive adversarial situation between assistant district attorneys and criminal defense lawyers, these two parties are tripping over each other — judges now observe — not to offend in the current political climate.

Senior Bronx, Brooklyn and Manhattan prosecutors call us, almost speechless in disbelief, that their bosses are being so overtly political. Brooklyn District Attorney Eric Gonzalez seems to be in a permanent photo op with New York City Public Advocate Jumaane Williams, many complain, despite the radically different functions and responsibilities of their offices.

Defense attorneys call us (really!) lamenting the absolute lack of regularity that has infected criminal courts throughout New York City. With no real sense of how any courtroom or situation will treat their clients, and with prosecutors now in a constant state of political stress, nobody can provide well informed advice.

Reporters call us to ask what exactly they should be looking for in these changing times, uncertain how lofty political rhetoric will translate into how cops work, what is happening in courtrooms and what will happen when a defendant released without bail commits a violent crime between court appearances, if he or she returns to court at all.

And, of course, cops of all ranks are calling us, worried that they will be scapegoated and not supported by the department when something goes wrong involving a routine stop that reveals an open warrant for failing to appear in court on an offense that used to justify bail but now doesn’t.

Bail is not supposed to be a prison sentence, as it too frequently is. The numbers stopped making sense — $1,500 might as well have been $150,000 for many. It was unfair, our union knows, and we support practical reforms.

But there has to be an expectation of consistency around these changes, practice that is the same today and next Thursday and twenty Thursdays from now. An expectation of consistency is the foundation of fairness.  

Bail must be in place for felonies. There must be immediate culpability and consequence for committing felony level offenses — a real commitment to the judicial system evaluating the alleged crime and hopefully short-circuiting other criminal activities compounding the original offense. In other words, the alleged offender has to be made to show up.

Judges should be able to exercise discretion free from the panic of their supervisors, so as to apply their own informed judgment. Prosecutors should back off the campaign politics of this issue, remembering that their offices, though local, are creations of the state — not city.

And we should commit to an honest data-driven evaluation of reforms as they proceed — here in New York, and in other states that have undertaken similar efforts — especially if required return appearances plummet or repeat offenses increase.

Most of all, and on this our union will not move an inch, crimes involving threats, intimidation or violence must always have bail set.

Bail is not supposed to be punitive, but neither should reforming bail be. The SBA will be a willing partner in supporting policies that make sense. We look forward to the discussions to come.

Ed Mullins is the president and Edmund Small the citywide secretary of the Sergeants Benevolent Association of the NYPD.

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