NY Daily News
By Judy Harris Kluger and Ariel Zwang
March 21, 2019
After years of discussion and advocacy, the New York State Legislature is on the verge of reforming our broken cash bail system.
At Safe Horizon and Sanctuary for Families, two of New York’s leading providers of services to survivors of domestic violence, sexual assault, and other crimes, we strongly support bail reform. We know that for too long, the cash bail system — which orders people held in jail unless they can put up a sum meant to guarantee their return to court — has criminalized poverty and has been particularly punishing for communities of color, who bear a disproportionate burden of criminal justice system involvement.
We do not need a cash bail system to ensure someone’s return to court. Data shows that the vast majority of people show up for trial even when bail isn’t set. A presumption of release for most charges makes sense and is sound policy. In other cases, judges can set non-cash bail conditions on defendants.
However, the safety of victims and witnesses in this discussion cannot be ignored. Over and over again, when we speak with our clients, they tell us they want the courts to consider the harm that might come to them and other victims if a defendant is released pre-trial.
As experts in our legal system and in working with victims, we know that cash bail, though a flawed system, has become a stand-in way for judges to protect victims. It allows them to keep high-risk defendants in jail, and away from the victim, before a trial.
We also know first-hand that some defendants facing child sex abuse charges who can post bail use their release to go back and re-victimize a child. We’ve seen it happen. After being released at arraignment without bail, a man — on his way home from court — took a 5-year-old into a basement and sexually assaulted her.
We also know that when domestic violence survivors say, “If you let my spouse out, they will come and hurt me,” they are usually right.
New York is one of only a few states in the country where judges are barred from considering the safety of a victim when they decide to detain someone pretrial. This must change.
Judges must be allowed to consider openly whether a defendant poses a threat to the physical safety of an identifiable person or persons when considering pre-trial detention. This will allow the courts to advance fairness while also protecting victims and survivors who are shown to be at great risk of further harm.
The decision to hold a defendant in jail should not be made lightly. Several bail reform proposals would rightfully require judges to articulate the reasons for their decision — something not required by the current law. Other proposals require prosecutors to provide clear and convincing evidence — a relatively high evidentiary standard — to show why a defendant should be detained pre-trial.
Our position is aligned with that of the Chief Judge Janet DiFiore’s Justice Task Force, a statewide group that includes defense attorneys, prosecutors, judges, law enforcement and victim services organizations who have studied this issue for the past two years.
Every case of intimate partner violence, sexual assault or child abuse is unique and requires a different approach to ensuring survivor safety. We advocate for judicial discretion so that in cases where there are threats of violence, all options to ensure the victim’s safety are available, including pre-trial detention.
Most of all, we reject a narrative that simply positions victims against defendants in criminal justice policy discussions. We know that it is possible to end cash bail and ensure the safety of survivors of violence and abuse. It’s time for New York to show the country the way forward.
Kluger is executive director of Sanctuary for Families, which advocates on behalf of victims of gender-based violence; she served as a judge in New York State for 25 years. Zwang is the CEO of Safe Horizon, the nation’s largest victim service agency.