Cuomo’s Magical Mystery Bail

The needless imposition of low-level bail keeps poor defendants in jail pending the disposition of their case, which almost invariably means they will cop a plea to get out. Progressive Manhattan District Attorney Cy Vance announced that his office will no longer seek needless bail for “most misdemeanors,” and no doubt that will start happening any day now. Any day now.

And New York Governor Andy Cuomo saw that it played well, and seized his opportunity.

The fundamental tenet of criminal law in the United States is that all those accused of a crime in this country are presumed innocent unless proved guilty beyond a reasonable doubt. That fundamental principle is not limited to American law; it was also part of Roman law, Islamic law and English common law. This bedrock safeguard has been ratified on more than one occasion by the Supreme Court and is codified in the United Nations Universal Declaration of Human Rights.

Well, if the United Nations says so, it must be true.

And yet, despite the centrality of this protection, in New York City jails, where 86 percent of the population is black or Hispanic, 75 percent of inmates have not been convicted of a crime. They are simply incarcerated awaiting trial.

Indeed. This was the case when Andy’s father, Mario, was governor. It was the case when Andy was elected attorney general in 2007, first elected governor in 2010 and is still true. Why didn’t anybody tell Andy about this whole “presumed innocent” thing until now?

How is this possible? How is it that we have a system in which punishment is imposed before one is found guilty?

It begins with the inadequacies of our bail system.

Most people who are arrested in New York are released on their own recognizance. But others, including many who are charged with nonviolent crimes, are required to obtain bail to avoid pretrial detention. The problem is that many people lack the cash to make bail.

Well, not exactly, Andy. The problem isn’t that poor people are poor, although that’s kind of a truism. The problem is that bail is sought by prosecutors, rubber-stamped by judges who are afraid that they will get hung out to dry if a released defendant does something that ends up on the front page of the New York Post, and you, like Cy, will throw the judge under the bus for being complicit in rape or murder.

The problem, Andy, is that bail is set for the asking, not for any real reason. This isn’t a mystery. Bail doesn’t set itself. There’s no magic hand from the sky that drops bail on people’s heads.

And the reason it affects mostly black and brown people, Andy, is that’s who gets arrested because that’s where the cops make their numbers, in the uptown precincts. And the more you arrest people for petty crap, or mouthing off to the cops in the 34 Precinct, or no crap at all,* the more priors they have, and the more bail they get. It’s kind of a rote cycle thing, Andy.

Take the tragic case of Kalief Browder,…

Sure. Why not?

One such incident is intolerable, and it opened our eyes to the urgent need for real reform because we simply cannot risk another.

That “tragic case” made news in December, 2013. How exactly do you define “urgent,” Andy? Does news take four years to reach Albany from the Bronx?

This year, I am sending a bill to the State Legislature that will close the gap between what our criminal justice system says and what it does.

The bill will reform our bail system so that anyone facing misdemeanor or nonviolent felony charges should be released without bail. Those who pose a current danger to a person or persons or pose a risk of flight can still be held in detention, with due process, but no longer will people go to jail for the crime of being poor.

That’s almost the state of the law now, but for one thing. You’re adding an additional reason to impose bail that the law doesn’t currently allow. The only basis to impose bail now is risk of flight, so by adding a new reason to impose bail, danger to the community, that will increase the  reasons to impose bail, and increase the number of people held in lieu of bail. Heck of a reform you got there, Andy.

People don’t go to jail for the “crime of being poor,” Andy. I know, it sounds great when you say that to the deeply passionate, gullible and ignorant throngs, but they do go to jail because they can’t pay the bail that your prosecutors demand and your judges impose. They go before judges because they get arrested, and they get arrested because your cops need to make their numbers, and want to make their overtime, by protecting society from working people with lawful knives, turnstyle jumpers and guys on bikes riding on the sidewalk.

It’s not magic, Andy. These bad things don’t mysteriously happen out of nowhere, as if some evil governor in the clouds points his wicked finger at black and brown people and then, poof, they end up in Rikers with  bail they can’t make. Sure, your teary-eyed social justice warriors will kvell over your written words demonstrating your deep devotion to such new-found concepts as the presumption of innocence, but that’s only because they spend too much time wallowing in misery and not enough thinking.

It’s no mystery, Andy. It’s you. It’s every official along the line, from cop to prosecutor, judge to governor. The only magic is your ability to pretend you’re the social justice savior when you’ve been the problem all along.

*The New York Legislature has twice enacted reforms to New York’s dreaded gravity knife law, for which thousands of working people using perfectly ordinary knives in the course of their jobs are arrested and prosecuted. Twice, you vetoed the law, Andy, capitulating to police who wanted the law to make their arrest quotas. Twice.

2 comments on “Cuomo’s Magical Mystery Bail

  1. B. McLeod

    When something is wrong, and it has been wrong for a long time, and even the people who perpetuate it recognize that it is wrong, but it still does not change, this is a sign that some group with a great deal of influence materially benefits from what is wrong.

    In such a case, departure from the status quo requires either a countervailing group with greater influence, or a decision by the group vested in the status quo to give up the material benefit it provides.

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