Albany Times-Union op-ed published June 18 2019

Last month two NY Giants came to Broome County to support local bail and jail reform efforts. Expectations of change are high, for on January 1 new legislation comes into effect designed to eliminate cash bail for most misdemeanor and non-violent charges. JustLeadership USA, and the Vera Institute which facilitated the Giants’ visit, expect county jail populations across the state to drop by over 50%.

One would not know this from looking around the Southern Tier. In Cortland County, embroiled in a battle to build a new jail, local officials bluntly state that “recent justice reforms will have little or no impact.” The Onondaga District Attorney predicted long ago that bail reform would do little to change jail numbers, given existing reforms. One hears the same in Tompkins county, where a community bail fund and alternatives to incarceration are well in place. A local data expert in Broome expects no more than a ten percent reduction.

It is indeed hard to imagine approaching a 50 percent reduction. Bail will remain in place for all persons charged with violent felonies and key misdemeanor charges, leaving the poor still in jail. Bail reform will also not affect the growing number of persons in our jails due to technical parole violations. Nor will bail reform rollback the growing use of jails as mental health and detox centers.  Most of those in Broome’s jail—80 percent according to our Sheriff—have mental health and substance use illnesses for which we have almost no long-term treatment options. For poorer counties, bail reform is unlikely to prevent the recycling of these persons in and out of the jail, often on escalating charges.

Implementing bail reform needs fierce work too: expanding pretrial and parole supervision and staff, hiring new county justice coordinators, getting police to issue appearance tickets rather than booking persons on higher charges, persuading judges to release persons rather remanding more to jail, and so on. For counties this is an unfunded mandate that will cost $ millions. It is unclear who would monitor the bill’s implementation. Community organizations and non-profits upstate certainly do not have the resources.

How will the police, courts, district attorneys, sheriffs, and legislators respond to reforms that challenge their practices? How will judges calculate risk? Judgements based on informal criteria are likely to reproduce outcomes based on the wealth and race of the defendants. Will jail for those awaiting trial simply be replaced by e-shackles? How much will supervision and surveillance by probation, drug court and other officers expand? We do not know. There is little transparency in court and policing practices, and no real oversight over sheriffs and county jails.

Reform didn’t need to be so expensive or complicated. Ending cash bail outright, as has been developed in other states and Washington DC, would have been far simpler. We now face a muddled, expensive compromise, one unlikely to achieve significant decarceration even as it widens other components of mass incarceration and surveillance.

This is now a worrisome pattern for criminal justice reforms. Raise the Age reforms led to an estimated $500 million in new youth jails, expanded sheriff budgets, and the increasing supervision of youth. Closing Rikers is predicated on spending at least $11 billion to build new jails in the poorer parts of New York City. As New York Giant Michael Thomas told me before the community forum, building new modern jails in order to close old ones makes no sense if we want to overcome decades of mass incarceration. It is an insight that needs to be applied to the cascade of reforms ushering from Albany.

William Martin teaches at Binghamton University and is a co-author of “After Prisons? Freedom, Decarceration, and Justice Disinvestment.”