Bail Reform Does Not Enable Anti-Semitism

by Haya Luftig

By Zachary Katznelson and David Bernstein
January 27, 2020
Jewish Week

In the face of a wave of anti-Semitic attacks in New York, a tempting, but ultimately false claim has been making the rounds: the New York State bail laws that took effect on Jan. 1, 2020 are to blame. The argument goes that the bail laws are so permissive that everyone committing anti-Semitic acts is being set free — without repercussion — creating open season on Jews. We are told if we roll back the bail law, we will be safe.

For at least five straight years, hate crimes against Jews in New York City have risen year on year. In 2018, reported anti-Semitic hate crimes in the City increased 23 percent. In 2019, they rose another 23 percent.  

Bail reform? That has been in effect for all of three weeks. 

Nor is the new bail law a get-out-jail-free card. Of the people charged with violence against Jews in New York City in recent weeks, not a single one is free without restraint. Instead, judges have assigned these people money bail, jailed them without any bail at all, locked them in mental health wards, or placed them under community supervision.  

Bail — requiring the accused to pay money as collateral for their freedom before trial — serves a very specific purpose: incentivize the person to return to court rather than forfeit the cash. Under this system, wealth matters tremendously. 

Contrast Harvey Weinstein and Kalief Browder. Weinstein, charged with rape, paid $1 million bail and spent not a single night in jail pending his trial. The teenage Browder, charged with stealing a backpack, could not afford $3,000 bail and spent three years in Rikers waiting for a trial that never came. Unable to overcome the demons from the abuse he suffered in jail, Browder committed suicide after his release. His case galvanized legislators to reform New York’s bail laws.  

So what does the new bail law actually do?  

First, it’s important to point out that judges can still require anyone accused of committing serious violence to pay bail or remain in jail until their trial. Except for domestic violence cases, New York judges have never had the power to preventively detain someone accused of a crime because the person might be dangerous. Indeed, preventive detention has been repeatedly rejected by New York State legislators over the past 40 years. Judges are notoriously poor at assessing whether someone is actually a danger. The power to detain too often results in racially disproportionate results. And many believe jailing people without a conviction, possibly costing them their job or housing, runs counter to the U.S. Constitution’s guarantee that people are innocent until proven guilty.  

Second, for people who are charged with most misdemeanor and nonviolent felony offenses, while money bail is no longer an option, judges can now subject them to a much wider range of community-based restrictions than ever before, including ankle monitors for many crimes. Judges can order people to undergo drug and mental health treatment as conditions of release. And if people fail to appear in court or are charged with a new felony, they can be locked up.     

Let’s look at what this has meant in the most notorious recent anti-Semitic cases:  

  • Grafton Thomas, charged in Monsey with multiple counts of attempted murder for the Chanukah attack: jailed without bail;  
  • Steven Jorge, charged in Manhattan with punching an older Orthodox man to the ground while spewing anti-Semitic slurs: jailed without bail and a psychiatric exam ordered;
  • Tiffany Harris, charged in Brooklyn with slapping three Orthodox women, who thankfully were not seriously hurt, and shouting anti-Semitic slurs: initially released, then charged with a second non-hate-crime assault, then civilly committed for mental health reasons;
  • Jasmine Lucas, charged in Brooklyn with punching an Orthodox man and shoving him to the ground while cursing him because of his faith, in Brooklyn: held on bail for a week; released after she paid it.

Such results are no different than cases that took place before the bail reform law took effect. 

In these scary times, it would be great comfort if the dangers to our community had an easy answer. We have to look deeper. We need our elected leaders to collaborate with the Jewish community, especially Orthodox Jews, and our neighbors to develop thoughtful steps to address the underlying causes of anti-Semitism, even as we hold perpetrators accountable.

Reasonable people differ on whether the bail law itself should be tweaked, such as by allowing judges to require more people charged with hate crimes to post bail. At minimum, legislators must answer the glaring need for adequate funding for mental health and drug treatment programs.  

But if all elected officials offer is undercutting bail reform, we will fail twice over.  

We will risk returning to a bail system that has been proven to unjustly incarcerate thousands of New Yorkers pre-trial, most of them people of color, the vast majority of whom present no danger to anyone and have nothing whatsoever to do with anti-Semitism.  

And the tide of anti-Semitism will continue unabated.  

Neither should be acceptable to any of us.

Zachary Katznelson is policy director of the Independent Commission on New York City Criminal Justice and Incarceration Reform. David Bernstein is President and CEO of the Jewish Council for Public Affairs.

About the Author

Haya Luftig