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In United States v. Salerno, Justice Thurgood Marshall wrote that, “[h]onoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.”

Justice Marshall was dissenting from the Supreme Court's decision to uphold a federal bail statute codifying preventative detention—that is, the pretrial jailing of presumptively innocent people awaiting trial—based on a perceived risk of future “dangerousness.” 

Until Salerno, incarcerating someone before they were convicted based on the assumption that they might commit some unknown future crime was seen as both morally problematic and likely unconstitutional. In his dissent, Justice Marshall worried that preventative detention was “consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, hav[ing] long been thought incompatible with the fundamental human rights protected by our Constitution.”

 In preventative detention, perhaps Marshall foresaw the nascent stages of our current crisis of mass incarceration. The same era that brought America Salerno also brought Willie Horton politics, the “war” on drugs and other now-failed policies that led to the incarceration of millions of Americans—predominantly people of color. The Prison Policy Institute reports that between 1983 and 2016 the pretrial jail population increased from approximately 175,000 people to close to 500,000 people.

As lawmakers and Governor Cuomo work out the final details of a sweeping overhaul of New York's bail laws, we must keep Justice Marshall's warning in mind. The New York Legislature has already debated proposals allowing for “dangerousness”-based preventative detention twice—once in 1970, and again in 1981—and rejected them both times.

Several recent studies show that mass pretrial incarceration has no impact on public safety, or that it, in fact, makes us less safe. New York City has become one of the safest big cities in America while simultaneously reducing its jail population, all without bail laws that allow judges to detain presumptively innocent people based on deeply fallible estimations of public safety risk.

At the same time, the abuse of money bail in New York's criminal courts has made the presumption of innocence all but meaningless. New York City courts' over-reliance on pretrial incarceration keeps 47,000 people in jail every year before they've been convicted of any wrongdoing. This practice is racially discriminatory: 93 percent of the people in our city's jails are people of color.

It is also expensive, since detaining one person pretrial at Rikers Island costs taxpayers $247,000 per year. Finally, it undermines the presumption of innocence: in October 2017, the Legal Aid Society released a study with the Human Rights Data Analysis Group showing that clients who had bail set were 34% more likely to be convicted, independent of other factors.

Governor Andrew Cuomo and Assembly Speaker Carl Heastie have committed to ending cash bail. In the Senate, Senator Michael Gianaris has introduced a bill that would end cash bail without allowing judges to predict future dangerousness.

But as advocates have long warned, ending cash bail is not enough: true reform decarcerates and works to end racial discrimination in our criminal legal system. The wrong concessions in any final negotiations can quickly spell disaster, putting New York on the same perilous path that California's bail reform efforts took last year.

As public defenders, we worry that extending preventative detention to accused New Yorkers based on perceptions of “dangerousness” would sanction further racial discrimination and bias. It could also mean an increase in the number of people in pretrial detention.

As the legislative process nears the finish line, lawmakers often make compromises to reach a final bill. Indeed, as Governor Cuomo mentioned on WNYC's Brian Lehrer Show, the law enforcement community has held up bail reform legislation by seeking to weaken proposals by insisting on the inclusion of onerous conditions of release and expansive preventative detention. Cuomo also correctly pointed out that New York has always focused on the likelihood of a person appearing for trial to determine who should be released or detained.

For bail reform to be meaningful, legislators must not let law enforcement compromise legislation. Legislators should maintain the risk of flight standard and reject any preventative detention scheme based on an individual's perceived “dangerousness”. They must also work to ensure that misdemeanors and non-violent felonies are guaranteed release.

We will not accept legislation that replaces our current bail system with a system of preventative detention that incarcerates the exact same people or even increases New York's jail population. If such legislation becomes law we will have failed not just the accused, innocent or otherwise—we will have ultimately failed ourselves.

Tina Luongo is attorney-in-charge of the criminal defense practice at The Legal Aid Society; Justine Olderman is executive director of The Bronx Defenders and Lisa Schreibersdorf is the founder and executive director of Brooklyn Defender Services.