Professor Lauryn Gouldin: Don't Let Fearmongering Sabotage Criminal Justice Reforms
By Professor Lauryn P. Gouldin, Syracuse University College of Law; Elizabeth M. Nevins, Maurice A. Deane School of Law, Hofstra University; and Jocelyn Simonson, Brooklyn Law School
(Albany Times-Union | Feb. 19, 2020) New York State Senate Democrats appear ready to propose a significant and troubling rollback of the new bail reform law, yielding to weeks of deliberate misrepresentations and cynical distortions by law enforcement and political opponents who are intent on undermining these long overdue changes.
We are legal academics who have studied the unequal outcomes produced by our broken criminal system. We are encouraged by the progress made in the reforms adopted last year and we are distressed by this knee-jerk proposal to reverse course.
While there is no publicly available language yet, the legislation would reportedly eliminate cash bail for almost all offenses but provide judges with much greater power to jail defendants until trial.
Fully eliminating money bail, which explicitly creates a two-tiered, class-based system, is an appropriate step forward. Replacing it with a broad judicial power to order indefinite pretrial detention, however, is taking two steps back. This new plan threatens to preserve and even deepen the mass incarceration crisis that bail reform was meant to address, and indicates a fundamental misunderstanding of the consequences of providing judges overwhelming discretion to adjudicate pretrial release decisions. History has shown us that such a plan would only deepen racial inequities and simply change the process that leads to pretrial detention, rather than reduce its prevalence.
Racial bias is baked into judicial discretion. Judges are more likely to set higher bail amounts for people of color. People of color are far more likely to be held pretrial than white individuals. Black and Latino men are less likely to be released on non-monetary conditions. The plan outlined by Senate leadership would only strengthen judicial power, which helped create this inequality. These problems with judicial discretion will not be solved with the addition of risk assessment instruments or algorithms, as those tools themselves incorporate racial biases. Too often, those tools are employed in ways that merely give judges cover for unjust decisions.
It’s easy to forget that everyone held pretrial is innocent and waiting for their day in court. Yet studies have shown that people held pretrial have a 13 percent increase in the likelihood of being convicted, and a 42 percent increase in the length of their prison sentence. The Senate’s proposal makes a mockery of the supposed constitutional principle of innocent until proven guilty and would only replicate these fundamentally unjust outcomes …