It might just be America’s greatest moral panic since the Salem Witch Trials of the 1690s. On Jan. 1, a law passed last year by lawmakers in New York state that aimed to end one of the most pernicious inequities of the mass-incarceration era — bail rules that locked up those accused but not convicted of minor and often nonviolent crimes for months or longer, mainly because they are poor — went into effect.
The backlash from the burn-'em-at-the-stake crowd — the injustice-industrial-complex of right-wing police unions, lock-'em-up career prosecutors and feckless politicians, and tabloid headline writers hoping to sell a few extra papers through moral panic — sprung into action even before the clock ran out on New Year’s bowl games.
“FIX NO-BAIL REFORM NOW!” screamed Rupert Murdoch’s New York Post, after a series of articles that turned once-obscure drunk-driving suspects and other accused petty criminals into Public Enemy No. 1 because judges were allowing them to walk the streets of our fair cities. In a suburb of Albany, the town police department put out a statement on Jan. 1 that read: “Happy New Year everyone. Especially happy for our most recent bank robber.”
It’s hard to say what’s more remarkable — the widespread panic over a law that’s still only been on the books less than three weeks or the fact that this fear campaign may actually work. Even so-called liberal politicians who initially backed bail reform want to at least tweak the law to add hate crimes, while more conservative lawmakers are holding out hope that the law will be scrapped before anyone knows whether it worked.
The one name you never see in New York’s screaming tabloid headlines is Kalief Browder. Browder — as folks who follow the social-injustice beat remember — was the kid stopped and frisked by Bronx cops two weeks before his 17th birthday, charged on flimsy evidence with stealing a backpack, and held on bail in the brutal Rikers Island jail for three years before all charges were dropped. But Browder never recovered from depression; at age 22, he hanged himself.
New York’s bail reform — just one piece of a nationwide campaign to undo decades of a New Jim Crow that has turned America into the biggest jailer on the planet — was supposed to be inspired by Browder’s life and death. Sixteen days of tabloid and political insanity want you to forget that. Just as they want you to forget about Willie Veasy, Chester Hollman, Shaurn Thomas, and all the other men, all of them black, here in Philadelphia who were swept up in our own moral panic of the 1990s and lost decades of their lives to wrongful murder convictions.
“The fact of the matter is, out of 100 cases, there might be one awful incident,” Chicago’s reform-minded district attorney, Kim Foxx, recently told my Inquirer colleague Abraham Gutman in an interview, when asked about curbing bail abuses. “We know that is a real possibility. But we cannot make 99 people suffer out of fear for the one. ... We have to be driven by facts, not feeling.”
The facts are that ending cash bail for low-level and middling crimes works — unclogging jails and giving people awaiting their trial a chance to hold their lives together, with the vast majority showing up for their court appearances. Here in Philadelphia, progressive DA Larry Krasner ended cash bail for a list of 25 offenses after taking office in 2018, which a year later he credited for a jail reduction of 1,700 people. That’s a humane way to save our tax dollars.
The results here dovetail with national and other studies that tend to show that as many as 96% of defendants on bail show up for their court appearances, and that a minuscule number of violent crimes have been committed by people who’ve been released while awaiting trial. But it seems no amount of data will dissuade the coalition of police union leaders, 20th-century police chiefs and DAs, and headline writers who refuse to admit their long-running mass-incarceration regime wasn’t just immoral but counterproductive.
Marie Ndiaye with the Legal Aid Society’s Decarceration Project in New York City told me the opponents of her state’s bail reform are “being very strategic in trying to make people be afraid. It’s an election year for us and so it’s ‘tough on crime.’ ... They’re just going with the formula.”
The one plot twist in New York has been a wave of anti-Semitic assaults and related crimes that have caused the vocal critics of the new law to complain that it may hamper judges from detaining alleged hate-crimes perpetrators who might be an ongoing threat to the community. Even some Jewish lawmakers have said that’s a misreading of the law and have cried foul, including three who wrote in a New York Daily News op-ed that “we combat anti-Semitism through education and community dialogue, not incarceration. ...”
Meanwhile, the same crowd is trying to thwart meaningful criminal justice from coast to coast.
In Foxx’s Chicago, Bill Conway — a Wharton grad and former naval intelligence officer — has gotten nearly $5 million from his dad, a cofounder of the giant defense-investing private equity firm the Carlyle Group, to challenge the Cook County state’s attorney and her progressive record in her reelection bid.
In St. Louis, near Ferguson, where a police shooting in 2014 gave birth to the Black Lives Matter movement, the war between first-term reform-minded prosecutor Kimberly Gardner and that city’s reactionary police union and its allies in local government has caused her to sue her critics under a law initially passed to restrain the Ku Klux Klan. Philadelphia’s Krasner and other elected progressive DAs from Baltimore to Nashville to Boston have clashed with judges and lawmakers eager to rein in their powers.
Krasner told me Thursday in a brief phone interview that fighting for criminal justice means “you’re fighting against racial injustice and you’re fighting against economic injustice — and so there’s going to be pushback, and a lot of it.” He said the fact that the reform-minded prosecutor in San Francisco may win election in Los Angeles after voters in his former city replaced him with the even more radical Chesa Boudin last November shows that urban voters still desire change.
Perhaps, yet it seems as if the wish to end mass incarceration is hurt by the same thing that’s threatening our politics in the Age of Donald Trump, and that’s fear. Fighting fear means keeping the electorate focused on the data showing that mass incarceration, including the longtime abuse of the bail system, has not just harmed certain communities but eaten at the moral fiber of all American society. It’s just too damn easy, it turns out, to go with a system of vengeance over justice.
If anything gnaws at us, it shouldn’t be the fear of the rare occasions that a suspect awaiting trial commits a crime, but pangs of deep regret over the innocent people who were locked up wrongfully, among the millions who’ve been sent away for far too long for minor violations. Remember, as America celebrates the birth of Martin Luther King Jr. 91 years ago, what he wrote in his 1963 “Letter From a Birmingham Jail”: “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny.”