Originally published at Law & Political Economy, Survived & Punished NY released an analysis of bail reform in the context of New York’s recent bail laws:

“Bail Reform” & Carceral Control: A Critique of New York’s New Bail Laws
Survived & Punished NY

Criminal punishment system reforms and reformers have gained traction in jurisdictions across the United States. At the same time, movements for prison-industrial complex (PIC) abolition have grown in size and visibility. New York State has experienced both of these trends. While New York officials have passed bail, sentencing, discovery, and other reforms at both state and city levels, various abolitionist collectives have begun targeting New York politicians to demand more structural change.

We are members of Survived & Punished NY, a grassroots, prison abolitionist organization dedicated to ending the criminalization of survivors of gender-based violence. Here, we present an abolitionist critique of New York’s recent bail reform statute, and call for a bolder vision of freedom and a broader scope of change. Legitimating pretrial incarceration and supervision, the bail reform statute is an example of a “reformist” reform that entrenches and will likely spawn new manifestations of the PIC.

Passed on April 1, 2019, the legislative bail reform package took effect in January 2020. Its stated purpose is to eliminate money bail and traditional jailing for many people charged with, but not convicted of, a crime. Under the New York legislative bail reform package, fewer people should be sent to jail pretrial. However, even if implemented to its fullest extent, the bail reform is not genuinely transformative because it divides people into categories of deserving/not deserving, it allows for growth in other forms of carceral control aside from traditional jailing, and, ultimately, it does not challenge the premise of pretrial incarceration.

(1) This New York legislative bail reform package directly divides people between those “deserving” of pretrial freedom and those “undeserving.”

The new law does not actually eliminate money bail. Money bail remains an option for judges for a specific set of charges, including misdemeanor and felony sex offenses, misdemeanor and felony criminal contempt in domestic violence cases, violent felonies, and more.

Because their charges provoke fear, the people accused of these carved-out crimes are deemed undeserving of freedom and therefore politically easy to cage. But these charges are not always as frightening as they sound—categories such as “violent” felonies are wildly over-inclusive.

More importantly, violent acts do not justify overriding the presumption of innocence to cage someone, nor justify wealth-based detention as a practice. This law will thus continue to erode the presumption of innocence, and do so disproportionately for a subset of people. Instead of dealing with root causes of serious harms such as sexual assault, domestic violence, gender violence, and other forms of violence, this law offers only the same, one-size-fits-all, brutalizing tool we already know to be a failure: caging.

Moreover, since the charges exempted from the bail reform are the types of charges often used against criminalized survivors, this law will exacerbate harm for those it purports to protect.

(2) The New York legislative bail reform package expands pretrial carceral control and the surveillance system.

The NY legislative bail reform package introduces pretrial electronic monitoring as an “alternative” form of “custody” (i.e., incarceration) and expands the use of non-monetary conditions—which may include mandatory check-ins with pretrial service agencies, travel restrictions, restrictions on whom to associate or live with, and curfews—for anyone accused of any crime.

Thus, many individuals who would have been released pretrial with no strings attached are now likely to have conditions of surveillance and supervision imposed upon them. These conditions are subject to the discretion of punitive trial judges. People subjected to such conditions are likely to end up re-incarcerated because of technical violations. Indeed, experience in other jurisdictions shows that limiting cash bail can lead judges to more frequently impose alternative conditions on release, ultimately resulting in more incarceration, not less, due to non-compliance with those (sometimes onerous) conditions. The stakes for compliance are high: under the new law, people found “noncompliant” with any other pretrial conditions are subject to electronic shackling or possibly incarceration as a result.

Further, this reform will exacerbate the emerging crisis of “mass supervision” by bringing state supervision into people’s homes and communities; disrupting their lives; and endangering not only people accused of a crime, but also their friends and loved ones. Supervisory control and traditional caging expand at the same time because conditions are easily violated, resulting in additional excuses to incarcerate; they mutually reinforce one another. Rather than being an “alternative to incarceration,” electronic shackling is merely another form of incarceration that expands the capacity of the carceral system to surveil and control people in their homes.

Moreover, instituting these new carceral controls will benefit parts of the Prison Industrial Complex (PIC) itself. Nonprofits and governmental contracted agencies will receive funding from the State to provide electronic shackles and conduct pretrial supervision. As establishment nonprofits that provide pretrial diversion, “Alternative to Incarceration” (ATI) programs, “reentry” programs, and other related services demonstrate, the organizations benefiting from such contracts have the potential to become powerful, status-quo-oriented obstacles to future decarceration. For example, when the legislature considers issues such as low-level drug offenses or the relationship between mental health and incarceration, these organizations often do not argue for decriminalization or resources for communities, but rather for diverting a higher percentage of people arrested for such into their programs.

(3) We, or others, will be organizing to undo this for years.

We will need to be organizing on two (or more) fronts to undo the ramifications of this legislation. One organizing front will be fighting to end money bail and pretrial detention for people accused of all crimes. This will be even more difficult to win given the passage of this legislation. Because the State now reserves money bail for a category of people it labels “undeserving,” the new law acts as a major impediment to their future liberation.

The second front, directly caused by this legislation, will be fighting to undo pretrial supervision and surveillance. As we have seen with “mass supervision,” ATIs and incarceration complement one another; they do not serve as substitutes. People across the country are already organizing against electronic monitoring and other forms of state supervision. We will likely need to take on this battle in New York State.

(4) This legislation does not significantly shift power relations in the courthouse.

 Before this law, the actors with the most power in the pretrial incarceration system were prosecutors and judges. That remains true, although, since one’s charges now determine bail eligibility, some of the judges’ power is shifted to the DAs. Now, DAs can simply charge people with more serious crimes to allow for setting bail. Indeed, DAs are already being specifically trained on how to evade limitations on pretrial incarceration. And even where DAs do not use this power, judges can still craft non-monetary conditions or say that electronic monitoring is necessary to ensure appearance.

(5) This legislation does not mobilize those most affected for ongoing struggle.

Since the passage of this law in 2019, organizing around bail reform in New York has continued, but only within the confines of the compromise legislation. The legislation itself, as well as the strategies deployed by the well-funded non-profit groups that helped pass it, have facilitated legitimation, limiting ideological possibilities to compromises incompatible with a broader vision for liberation.

After this legislation was passed, legislators, media outlets, and non-profit advocates alike framed the passage of the legislation as an unqualified victory. For organizations needing to appeal to funders, it was important to market this legislation passing as a victory. For example, Just Leadership USA, which received funding to start the #FreeNewYork campaign, shut down its bail reform campaign shortly after the legislation passed. In fact, the predictable attacks on the legislation from DAs, police, elected officials, and their supporters have led to even more exaggerated claims from NGOs about the benefits of the changes. Not only have they refused to entertain critical perspectives on the law as it was passed, they have avoided commenting on the ease with which DAs have, in practice, been able to evade its stated aims even in the first months it has been in effect.

Finally, because this law divides people into deserving and undeserving camps, it has undermined the solidarity in organizing among people facing the pretrial punishment system in its new form.  Effectively, the legislation and its NGO backers have deeply damaged both current and future efforts to even incrementally improve the pre-trial conditions of anyone that cops and DAs charge in ways that fall within the law’s carve-outs.

From an abolitionist perspective, New York’s bail reform is deeply flawed. Yet in defending the New York bail reform package against attacks from law enforcement, Republicans, and even moderate Democrats, advocates have embraced law enforcement’s terms of debate by insisting that the bail reform is a “measured, [] common sense” law because its benefits are tailored to “people charged with misdemeanors and non-violent felonies” and because “[j]udges still have the authority in all cases to impose conditions like…electronic monitoring.” In this way, the harm caused by the law is compounded by the public discourse supporting the new statute.

Of course, we too want to use this reform, however imperfect, to free as many people as possible, and we too want to oppose efforts to revert to the prior regime. However, we must not let this moment limit our political imaginations. Instead, we hope that identifying the limitations of the bail reform law helps more people recognize the need for truly transformative change.

Survived & Punished NY is a grassroots, prison abolitionist organization dedicated to ending the criminalization of survivors of gender-based violence. It is publishing a forthcoming evaluation of several recent reforms in New York through an abolitionist lens, including the New York State Bail Reform Package, Domestic Violence Survivors Justice Act, New York City Jail Expansion Plan, New York City Trans Jail Task Force, Trans/Gay Panic Defense Reform, and institutional and legislative reforms and proposals related to sex work and human trafficking.