New York barely squeaked by with a passing grade in an inaugural survey of pretrial services across the country.
The report, “The State of Pretrial Justice in America,” is an attempt by the Pretrial Justice Institute to chart and track the progress of pretrial improvement efforts year-over-year, according to Cherise Fanno Burdeen, the institute’s CEO.
A “C” may not be a sterling rating, but Burdeen said it was a mark above the “dismal” national average of “D.”
Burdeen noted that pretrial detention remains where most people who are locked up are serving time, and that the vast majority of those people are in on misdemeanors and will be sentenced to time served or probation.
“Most people are being held in jail because they’re too poor to post a money bond,” she said. “These are not rapist, murderers and arsonists. These are people charged with low-level, nonviolent, non-person for the most part misdemeanor charges.”
According to the report, New York scored best in the incarceration rate category, earning two points. Half the total possible points of four were also earned for the use of validated pretrial assessments across the state. However, New York’s continued use of money bail earned it zero points, while the “bonus point” possible for widespread use of pretrial assessments and the elimination of money bail left the state with a total of three points, bringing it to the lower end of the “C” range.
Burdeen said the state’s biggest issue—and one she said the institute advocates for changing—is the inability of judges to consider the dangerousness of a defendant in setting bail.
“We’re fairly certain judges across the state are thinking about whether or not the person in front of them is likely to get in trouble or cause trouble prior to trial, and yet there’s no legal way to detain them for that, and there’s certainly no legal way to appeal if you think a judge’s considering that,” Burdeen said.
She pointed across the Hudson River, where New Jersey judges do explicitly take public safety into account.
“In those hearings, just like in D.C., about half the time the state is unable to make the case, and the courts are releasing,” Burdeen said, adding that New Jersey’s detention rate was down to 10 percent, while D.C.’s was down to 5 percent.
Some in the defense bar have raised concerns over changing what judges are allowed to consider when assessing bail, especially absent reforms to the use of cash bail, as a path to more punitive bail measures. Burdeen said the concerns aren’t being realized elsewhere.
“It really kind of counters this claim that, if you provide the courts with a legal means of detention, they’ll somehow abuse it—as if to say they’re not abusing that today by serving money bonds,” she said.
Burdeen also argued for a wider use of assessment tools during the bail process, which she said, when used as to help guide discretion using “objective bumpers in the lane,” ultimately gives defendants a better shot at being released. She pointed to a letter released in May from a host of national public defender organizations, including the National Legal Aid and Defender Association and the National Association for Public Defense, that supported the use of pretrial risk assessments in helping to determine bail.
“You’re seeing a large perception of people, in particular people who would have been detained on money bond, being released non-financially,” she said.