WASHINGTON — Standing a few feet from President Biden during an event last Friday at the White House, Miami Mayor Francis X. Suarez delivered a message that was bound to find little traction in an administration that has embraced some progressive criminal justice reform proposals.
It was time, Suarez said, to “revisit failed policies like no-cash bail, which seem to be contributing to the spike in violent crime in our cities.”
Many of the mayors in the audience — who were in Washington for a summit of the U.S. Conference of Mayors, which Suarez, a moderate Republican, heads — loudly clapped.
Biden stood with his arms crossed.
The scene was symbolic of how the contentious issue of cash bail — the practice of having criminal suspects pay a fee to avoid waiting in jail for their day in court — remains largely unresolved, pitting the president’s commitment to racial equity against growing public fear of crime.
The Brennan Center for Justice has found no evidence that bail reform caused the pandemic-related crime spike in New York City. Republican jurisdictions that haven’t adopted bail reform or other major changes to criminal justice have also experienced higher crime rates since 2020.
Still, bail reform remains a matter of intense contention.
Last week, Rep. Elise Stefanik and fellow Republicans representing New York introduced a public safety bill that would, in her words, counter the state’s “reckless and dangerous” bail reform law by allowing states to apply for $10 million in federal anti-recidivism grants, provided those states allowed judges to consider a defendant’s risk when setting bail.
And on Monday, Florida Gov. Ron DeSantis, a Republican who has risen to prominence as an aggressive culture warrior, denounced bail reform in remarks to the Florida Sheriff’s Association. “It breeds contempt for the rule of law, and will not stand here in Florida,” he said.
Ever since the harrowing plight of Kalief Browder — who spent three years in jail at Rikers Island awaiting trial after being arrested, at the age of 16, for allegedly stealing a backpack — was featured in a 2014 story for the New Yorker, opposition to allowing judges to set cash bail for criminal suspects has grown.
The practice effectively penalizes poor defendants, who often end up sitting in jail for months as they await trial. Wealthier suspects, on the other hand, are able to make bail and thus await trial from the comfort of home.
The practice of incarcerating pretrial defendants in jails plagued by overcrowding, violence and unsanitary conditions creates pressure for even the innocent to plead guilty — especially in a criminal justice system with long delays, which have only grown worse since the pandemic.
Browder insisted on his innocence and rejected numerous plea deals, .
In 2015, he committed suicide.
During his presidential campaign, Biden discarded the law-and-order image that had followed him since his authorship, in 1994, of a crime bill that critics believed led to mass incarceration and over-policing. By 2020, he was embracing more progressive policies, including bail reform.
“Biden will lead a national effort to end cash bail,” his campaign website said.
Criminal justice reform has not been a top priority for the White House, which focused on fighting the coronavirus in 2021, only to see the next year consumed by the war in Ukraine.
But states have not been waiting for Washington. In 2021, California revised its bail guidelines to prevent judges from setting bail at a level that would be unaffordable to a defendant. Illinois was set to become the first state without any cash bail at all in 2023, but a legal challenge has stalled the reform.
Those successes reflect years of work by criminal justice advocates, but they also come at a somewhat awkward time for advocates of reform. As violent crime has surged in most large cities since 2020, many mayors who may have previously agreed with that position appear to have shifted to Suarez’s view. Lori Lightfoot, the Democratic mayor of Chicago, has blamed bail reform for her city’s epidemic of gun violence; so has Eric Adams of New York City, who has endured attacks from fellow Democrats who say that by highlighting crime, he was only playing into a conservative narrative about progressive excesses.
A former New York police officer, Adams remembers when both violent and quality-of-life crime plagued the city to a much greater extent than they do today. Yet he remains unapologetic about what he describes as his top priority.
“Public safety is the key,” he recently told Yahoo News. “I will continue to say that.”
Karen Bass, the new Los Angeles mayor, also a Democrat, released a public safety plan while running for office that acknowledges the old bail system fostered inequality. But, the plan says, “bail reform does not mean a carte blanche get-out-of-jail-free card.”
Questions about whether bail reform has gone too far are being asked in smaller communities too. Tony Perry, mayor of Middletown Township in central New Jersey, is suing the state, arguing in a recent press conference that a bail reform law signed by Republican then-Gov. Chris Christie in 2014 — which used a computer formula to decide whether a suspect posed a danger — was contributing to a rash of vehicle break-ins.
Criminal justice reformers say that releasing nonviolent offenders without making them post bond has not been responsible for the rise in violent crime. Conservatives who believe that criminal justice reform has gone too far, too fast strenuously disagree.
“It is not coincidental that the sudden, massive increase in city crime came at precisely the same time as the release of 2,000 career criminals from city jails,” wrote analysts for the conservative Manhattan Institute of the 2019 reforms to New York’s bail laws. Those reforms have since been scaled back by the state Legislature, but not nearly enough for Adams.
For the most part, decisions about how much discretion judges have in setting bail are a matter for states, not the federal government, to decide. Federal cases are the exception, but they constitute a minority of court proceedings across the nation.
In 2021, the Biden administration released a gender equity plan that pledged to “work to end cash bail and reform our pretrial system, recognizing the harm these processes cause, particularly for Black women and families.”
Along with police funding and the homelessness crisis, bail reform has emerged as a contentious issue for Democrats, who for the most part control big cities (though Suarez in Miami is an exception).
Republicans generally earn more trust on public safety than Democrats, but that gap has not always translated into an electoral advantage for the GOP. During last year’s congressional midterms, Republicans frequently painted Democrats as unconcerned with public safety, leading some pundits to predict a sweeping takeover of both the Senate and House of Representatives.
In the end, Republicans narrowly won the House, while Democrats kept control of the Senate. Inflation remained the top issue for voters, along with abortion. Only one out of 10 midterm voters said that crime was a top concern, according to an Edison Research exit poll.
Still, the debate over public safety and criminal justice is bound to continue throughout 2023, potentially emerging as a major issue in the 2024 presidential election. In a recent essay, Democratic strategist Ruy Teixeira described bail reform as a “pet cause of the progressive Left,” one of several that he warned would only help a Republican candidate like former President Donald Trump win back the White House in 2024.
In his own remarks at Friday’s meeting, Biden resorted to a line he frequently deploys when discussing the surge in violent crime that began around the start of the coronavirus pandemic.
“When it comes to public safety, we know the answer is not to defund the police. Not to defund the police,” the president said, pointing to the $350 billion in his 2021 coronavirus relief bill that state and local governments could use to fund police departments.
Critics of bail reform say that if violent suspects are released after being arrested, police work becomes futile. Speaking at the opening of the mayoral conference early last week, Suarez charged that bail reform had “driven an explosion of lawlessness.”
The White House says that it remains committed to reform, but its enthusiasm for an outright end to cash bail appears to have cooled.
“The president has called cash bail a modern-day debtor’s prison. Whether you are detained while waiting for a trial should depend on the risks you pose, not your ability to pay,” a senior administration official told Yahoo News. “A judge should be making that decision based on objective information about risks to the community, not based on how much money you have.”
A case-by-case evaluation is also the position of the Major Cities Chiefs Association, an organization that represents the police commissioners of the nation’s largest cities and tends to endorse a law-and-order message.
“Common-sense reform is needed to provide relief to nonviolent offenders who pose a minimal risk to public safety, however, the theory that it is unconstitutional to hold offenders, even murder suspects, pre-conviction is contrary to common sense and comes at the expense of community safety,” MCCA chief executive Laura Cooper told Yahoo News.
Cooper said that the MCCA “supports implementing a risk-based system,” much as the White House now apparently does.