The Downside of Bail Reform

The widespread looting and rioting during protests over the killing of George Lloyd has brought new attention to bail reform laws like New York’s.

That’s because hundreds of those arrested for vandalism, burglaries and arsons committed over the past days have been promptly released after arraignment, in keeping with bail reform laws that have been enacted in some 19 states.

New York, where rioting and looting have accompanied protests in Rochester, Buffalo and New York City, is one of those states, having enacted a bail reform law at the advent of 2020 that prohibits the setting of cash bail for a long list of misdemeanors and a number of felonies.

Among the crimes covered by New York’s law are burglary committed without a weapon and arson that doesn’t target occupants of a building. Such acts have been well represented in the mayhem of recent days.

The goal of the bail reform laws is a laudable one. The presumption of innocence is a bedrock of American jurisprudence, and laws like New York’s current one are aimed at preventing the jailing, for lack of cash, of poor people accused of crimes. Before bail reform, an indigent citizen accused of even a minor crime and unable to meet even a modest bail requirement could be held in jail on the charge, sometimes losing a job or leaving a family without a father or mother in the interim.

What is more, bail cannot be used as a punishment. Its purpose can only be to ensure that a person accused of a crime will appear in court for a hearing of his case.

All the same, though, the setting of bail can act as a deterrent to crime and help keep some criminals who would otherwise go on to commit new crimes off the streets.

In fact, in New York, the first 58 days of 2020 saw 482 people who had been arrested on charges where cash bail was prohibited go on to commit 846 new crimes.

The law disallowing bail for people accused of minor crimes and who aren’t flight risks is reasonable. It helps relieve overcrowded jails, frees taxpayers from the expense of keeping large numbers of people imprisoned and, most importantly, honors the premise that a person is innocent until proven guilty.

But like all good-intentioned but badly crafted laws, this one has yielded unintended and unhappy consequences.

Like the quick release of looters and rioters over the past days because their crimes didn’t meet the threshold of bail allowance. To be sure, many of those arrested were in possession of weapons or incendiary devices and thus were saddled with bail requirements. But many were unarmed, opportunistic looters and people who felt justified in setting empty buildings aflame; and those arrestees, as the law mandates, were released without having to post any bail.

Back in January, we noted that one of the objectionable parts of the new bail law in New York was the fact that it did not allow a judge to exercise discretion in cases where there are mitigating concerns about an arrestee. Since then, however, the law has been modified to give judges more discretion in setting bail and other conditions of pretrial release.

But the amendments to the law won’t go into effect until July 1. It is unclear, however, if there are, chas v’shalom, future cases of violent unrest, that change in the law will suffice to prevent the automatic release of rioters that we have seen over the past week and more.

Many demonstrators who were arrested were charged with simple curfew violations. It is certainly arguable that bail might not be appropriate for such people. But if a looter or an arsonist intent on creating mayhem and encouraging further unlawful acts is arrested, setting bail is not only appropriate but necessary.

The peaceful demonstrations that we have seen on American streets since the death of Mr. Floyd, whose killing was only the latest in a number of high-profile deaths of black men at the hands of police officers who employed undue force, are a legitimate expression of anguish and determination to weed out violence born of bigotry where it exists in law enforcement. Many police officers and officials themselves, in fact, have joined the movement to uproot such law enforcement malpractice.

But those who, whether out of anarchist conviction or a base desire to steal, seized the opportunity of lawful demonstrations to riot and wreak havoc on American streets over recent days are not the sort of people that bail reform was crafted to deal with. Such criminals should face not only harsh penalties if convicted but, if arrested with good reason, reasonable bail requirements, to ensure that their lawless attitude does not lead them to avoid standing trial for their heinous acts.