CDANY Board Member N. Scott Banks Responds to Attacks on Bail Reform

Monday, December 16, 2019 9:18 PM | Jennifer Van Ort (Administrator)


(Albany, NY) - N. Scott Banks, Attorney-in-Chief of the Legal Aid Society of Nassau County, responded to attacks on the new bail law with the following statement:

“New York State has taken critical steps to reform our bail and discovery laws, making the criminal justice system fairer and more transparent, promoting community safety and saving taxpayers’ money in the future through reduced pre-trial detention. Far from radical, these reforms will simply grant defendants in poverty the same presumption of innocence that their wealthier counterparts always had and bring our evidence-sharing practices in line with the rest of the country. Tragically, naysayers like certain District Attorneys, who for decades rejected all pre-trial reform, continue to do everything in their power to subvert the will of lawmakers and the majority of New Yorkers in enacting these important changes. I urge them not to undermine the success of these important reforms and the confidence of the public in our system of criminal justice.”


New Yorkers across the state are regularly jailed pretrial due to poverty. This injustice is more common upstate and in other parts of New York State outside New York City. In 2018, bail was set in 42% of non-NYC cases and 25% of NYC cases. A total of approximately 15,000 people across the state are currently jailed pre-trial, or 59% of the total jail population. Statistics show that pre-trial detention negatively impacts public safety, denies equal justice, and wastes taxpayer funds.

Community Safety: Studies show that brief periods in pretrial detention can actually increase the likelihood that a person will be rearrested, likely because they worsen the root drivers of harm and crime: poverty, trauma, housing instability, unmet mental health and health needs and untreated substance use disorder. Decades of data and experience show us that decarceration can come with improved public safety.

Distortion of Justice: Statistics show that pre-trial detention distorts justice and contributes to mass incarceration by empowering the prosecutors to coerce guilty pleas, regardless of guilt or innocence. A summary of analyses included in a 2015 report by the VERA Institute of Justice found defendants jailed before trial were far more likely to accept harsher plea deals and receive prison or jail sentences. Of all those who receive prison and jail sentences, people who were incarcerated pre-trial received sentences that were, on average, two to three times longerthan those who were released pending trial. The Bureau of Justice Assistance, a division of the U.S. Department of Justice, has found that “[t]hose who are taken into custody are more likely to accept a plea and are less likely to have their charges dropped.”

Costs of Pretrial Incarceration in Nassau County: It is not only more harmful, but also more expensive to incarcerate people than to provide services to meet their needs. According to data obtained by the Vera Institute of Justice, the average cost of incarceration in Nassau per day per person is $418. This is funding that could instead be allocated to housing, economic development, education or healthcare.

A Large Majority of People in Nassau County’s Jail are Presumed Innocent: In 2018, an average of 816 out of 1094 people in at Nassau County C.F., or 75%, were detained pre-trial and legally innocent. Most were detained on bail set in an amount they could not afford.

Appearance Rates: Data from charitable bail funds across the state also demonstrates that bail is not necessary to ensure that people released pretrial return to court. Roughly 95% of the people whose bail was paid by a community bail fund — from Kings to Columbia to Suffolk to Tompkins and Onondaga counties — returned for all of their court dates, despite having no financial “skin in the game.” The Brooklyn Community Bail Fund paid bail for nearly 5,000 people who would otherwise have been jailed for their poverty and, in many cases, coerced to plead guilty, regardless of guilt or innocence, just to get free. Instead, they were free to fight their cases while at liberty. BCBF clients were three times as likely to have favorable case outcomes. That means fewer lives and families derailed by incarceration and criminal records. That means far greater chances at positive outcomes in education, employment, housing, and health. This is achieved through support, not punitive measures. Bail funds provide court reminders and help connect people to needed social services.

Harm of Incarceration: Pretrial jailing imposes a wide range of devastating costs on New York’s families and communities. These costs begin with the need to post bail or pay for someone’s release from jail after their arrest. When they cannot afford bail, it costs families to stay in contact with their loved ones as they have to pay exorbitant rates for phone calls and transportation to visit. On top of these direct costs, families lose income, child support, and other financial contributions when a wage-earner is incarcerated. Finally, incarceration also takes a toll on family members’ physical and mental health, education outcomes, and other measures of well-being. Even one day in jail can totally derail a person’s life. They can lose their jobs and housing. The state may take their children away.

Jail conditions pose a serious, and too often deadly, threat to incarcerated people. The New York State Commission of Correction found that in six different deaths across five different New York county jails, there were “egregious lapses in medical care.” Perhaps the best known story of the trauma caused by pretrial jailing is that of Kalief Browder, who took his own life after being jailed for three years as an innocent teenager on Rikers Island. Six people died Nassau County’s jail in 2016 alone. There is an epidemic of jail deathsin Broome County. In addition, at least 30 people have died in Erie County’s jail since 2005. At least 372 people have died in New York City jails since 2001. Efforts to protect public safety must also address the acute and grave risk that incarceration poses to the safety and well-being of the tens of thousands of New Yorkers locked inside.

People in pre-trial detention are regularly locked in solitary confinement for months and even years. Ample research and accounts from survivors of solitary affirm that this practice causes serious and lasting psychological and physical harm.

Solution: Thankfully, our legislature and Governor took action to address this injustice. They responded to the call of the community and passed the new pretrial laws so that all people – not just relatively wealthy people – accused of misdemeanors and non-violent felonies can fight their cases while at liberty, with their families and communities and support networks, though with some degree of community supervision if needed.

Powered by Wild Apricot Membership Software