NYAPRS Note: People living with mental health conditions are grossly overrepresented in our criminal justice system in large part because of our money bail system. Typically, when someone is accused of a crime, people have to pay money up front to be released from jail while they await trial. It is an outdated, inefficient, and deeply unfair system that keeps jails full of people who have not been convicted and inflicts disproportionate harm on low-income communities and communities of color. Money bail also disparately impacts people living with mental health conditions, contributing to high rates of incarceration for this population.
Once booked into jail, people with mental health conditions often struggle to gather the money they need to pay for their freedom as their cases move forward. In one study, people living with mental health conditions were about half as likely to make bail as those who did not have a mental health condition, even though bail amounts were comparable. That same study found that it took five times longer for people living with mental health conditions to post bail. In other words, money bail keeps people with mental health conditions in jail longer before their trial – and the consequences can be devastating.
Even short jail stays can lead to interruption in treatment and loss of employment and/or housing. Jail is also a traumatic environment, especially for those with mental health conditions. Most will receive little or no mental healthcare, and for many, incarceration will make their condition worse. Many will be subject to physical and/or sexual abuse. Because people with mental health conditions are more likely to be detained pretrial, they are often caught in a system-perpetuated loop of justice-involvement. Each additional stay in pretrial detention can worsen mental health status and increase the risk of recidivism. Our communities need bail reform now
In September, Governor Cuomo called for an end to cash bail. While we are encouraged by this commitment to action, we know that ending cash bail is not enough. Any bail legislation must result in a vast decrease in the number of people incarcerated pretrial, an end to wealth and race-based jailing and true due process protections. Decarceration must be a central priority of any bail reform efforts.
Accordingly, NYAPRS has signed on to letter from a group of NYS advocates that include Citizen Action of NY, LatinoJustice, the Legal Aid Society and the NAACP that calls on Governor Cuomo to go a number of steps further, which would:
● “Prohibit the use of for-profit pretrial agencies or services; and
● Ensure that no one is required to pay for the conditions of their release.
● Prohibit pretrial incarceration for the vast majority of people;
● Require an evidentiary hearing within 2 days of arraignment that includes a clear and convincing standard and full discovery turnover;
● Ensure that judges always have discretion to release people, regardless of charge or motion by prosecution; and
● Require the release of any person who is detained without trial beyond speedy trial timeframes.
● Prohibit the use of electronic monitoring except for people otherwise subject to pretrial incarceration;
● Require due process protections for individuals potentially subject to restrictive conditions of release.
● Prohibit judges from considering a person’s future “dangerousness,” or general risk of re-arrest, which would invite judges to indulge implicit biases and negative racial stereotypes; and
● Disallow the use of risk assessment instruments that claim to predict a person’s future “dangerousness” and codify and reinforce racial disparities.
● Ensure court reminders in the forms of text messages, telephone calls, electronic mail, or first class mail in advance of scheduled court appearances;
● Require the collection and reporting of data on the number of people released (including the conditions imposed), the number of individuals in custody prior to trial, the length of stay, and other related information, disaggregated by county, judge, the racial and ethnic background and gender of the accused, and the top charges.
● Eliminate pretrial jailing for all but a narrow subset of cases and ensure robust due process protections.
● Vastly limit the use of carceral technologies and ensure due process protections for anyone potentially subject to electronic monitoring, or any other conditions that restrict one’s liberty.
● Reject calls for the addition of broad, generalized “dangerousness” considerations as well as related risk assessment instruments.
● Require court appearance alerts.
● Require robust data collection and sharing of all data points related to pretrial processes.
The current political landscape, lessons learned from bail reform efforts across the country, and unprecedented grassroots momentum have created a unique and powerful opportunity for New York to lead in the movement to end mass pretrial jailing without replacing our current unjust system with racially-biased risk assessments or mass community surveillance.”