In his Kingston Times/Hudson Valley One article, the chief assistant district attorney of Ulster County, Michael Kavanagh — also the Republican candidate for district attorney in the upcoming fall election — claimed to be “firmly in favor of responsible bail reform” in his article.
Yet he spent that article catastrophizing every point of the recent reforms and imagining dire scenarios that do nothing to diminish the point and goal — the human and civil right — of pretrial liberty equality.
Mr. Kavanagh points out that beginning in January, judges will no longer be permitted to set bail on defendants charged with committing a residential burglary (a nonviolent felony). Then goes on to add that this would be true of those in possession of large quantities of illegal drugs such as heroin (any possession of this substance is a class A misdemeanor, and possession of 500mgs and over, and/or intent to sell, is a felony). He also implies that bank robbery (felony) as another incident where pretrial equity would create dire problems.
Pretrial liberty reforms will affect most misdemeanors and only some nonviolent felonies. But Mr. Kavanagh does not address this salient proviso, nor the telling fact that cash bail only keeps the destitute jailed. If the accused has the money or collateral to finagle pretrial liberty, they’re then free to go about their possibly drug-possessing or drug-dealing day.
Mr. Kavanagh also mentions the battle against the ongoing opioid crisis as possibly suffering negative effects from bail reform. He speaks of people charged with misdemeanor possession, and of their families begging for these addicted loved ones to go to jail so they don’t die of an overdose.
What Mr. Kavanagh fails to address here, along with financial inequities, is that we already have places that care for those in the grip of addiction, and they aren’t called jail. Lifesaving and life-redeeming isn’t part of a punitive law and order structure. That’s why people in the struggling with addiction are best helped in hospitals and recovery centers, not behind bars — not even for one night. The false dilemma, black-and-white fallacy of, “it’s either jail, or ODing back in their old environment,” is a mere red herring. A problem pushed out to misdirect from the more humane and cost-effective solution of supporting recovery programs, hospitals and places specifically equipped to give therapy and counseling.
Jail will never solve the opioid crisis or any other crisis. It certainly hasn’t so far, and the definition of insanity is doing the same thing, over and over, and expecting different results.
Finally, Mr. Kavanagh’s third doomsday-style what-if purports that cash bail may be the only thing to prevent an intoxicated driver who’s been caught from doing so again before their trial. Thus avoiding a potentially fatal incident. But this is also a flawed and biased argument. It holds water only if the driver were unable to buy their conditional freedom after arraignment. In Mr. Kavanagh’s scenario, a driver who had the wherewithal to buy their pretrial liberty would not be affected by the great savior cash bail-system. They would pay their way free and, on the drive home, perhaps pick up something alcoholic with which to celebrate that freedom.
The people who cannot post bail languish in jail until trial, possibly losing their livelihood, home and persons under their care. The biggest, oldest problem with the system that allows that is this shameful inequity. One of too many perpetuated by a system where pretrial liberty comes at a price for most, but which only a relative few can pay.
Tapping into community concerns for safety and property by insinuating what-ifs fueled by broad generalizations, and slippery, nonspecific use of legal jargon mixed in with colloquial language, is not a sound rebuttal to demands for justice, fairness, equality, and basic human and civil rights. Conflating nonviolent misdemeanors with violent felonies is not sufficient to cloud the clear injustice that has been left to stand for too long. The legal system has robbed citizens of their rights, their livelihoods, and even their lives before fair trials can be had. People are serving sentences before the trials through which they might be exonerated.
This isn’t right. It isn’t just. It isn’t fair. It isn’t good.
It isn’t “responsible,” either.
If, as Mr. Kavanagh stated, he and the Ulster County District Attorney’s Office remain committed to further lowering the number of people incarcerated pretrial, then bail reform, as it will be enacted, is the best, most humane, most just way to do so. Reducing that rate, by over 36 percent is a fine start. That’s a good first step. But you’re not finished.
We are not finished.
Because 36 percent is cold comfort to those who still await their trials while rotting in jail … too poor to afford even conditional freedom, when liberty — and life, and the pursuit of happiness — is an inalienable right promised to every American citizen.