Media Outlets Circulate Misleading Stories About Bail Reform, Man Accused Of Attempted Murder

The Briefing

Several media outlets amplified misinformation this week by circulating false stories about the connection between bail reform and a New York resident, Pedro Hernandez, who currently stands accused of attempted murder. Outlets cynically called him the “poster boy” of bail reform and a “darling” of reformers – in an apparent effort to deflect attention from all data and research showing the success of bail reform.

Hernandez’s case has nothing to do with bail reform

Here’s the truth: In 2016, Hernandez was wrongfully detained for more than a year on unaffordable bail based on unfounded gun possession and assault charges. His freedom in 2017 was secured by the posting of his $100,000 bond, which was paid by a charity after the initial bond amount of $250,000 was lowered given the credible claims of police misconduct surrounding his case. Two months after his release, Bronx District Attorney, Darcel Clark, asked the judge to dismiss all charges against Mr. Hernandez in the interests of justice and pledged to investigate the officers who allegedly framed him. 

Thus, Mr. Hernandez’s previous had nothing to do with bail reform, which was not enacted until 2020. Had the new bail laws been in place at the time, Hernandez’s original charges would not have been bail eligible anyway, as bail reform only applies to misdemeanors and low-level felonies. His charge from 2015 was a violent felony.

The focus on Hernandez’s 2015 case—which was eventually dismissed amid allegations of police misconduct—betrays a fundamental misunderstanding of New York’s bail laws. The purpose of bail is to ensure that a person who is presumed innocent returns to court. It has never been a way to punish a person for an alleged crime while presumed innocent and unaffordable bail violates the Constitution. Hernandez’s previous case underscores the dangers of pretrial detention.

In a shameful twist that the New York Daily News euphemistically called “an odd coincidence,” Hernandez was taken to a holding cell by a NYPD officer who Hernandez had previously sued twice for assault and wrongful arrest. The Daily News directly quoted the officer, who remains on the force despite being sued at least 20 times for misconduct and brutality, allowing dehumanizing language about Hernandez and the suggestion that “jail may be the only thing that’s good for him” to be printed without qualification. 

NYPD is confusing the public to maintain the status quo

The NYPD, which appears to be a major source for the stories about Hernandez this week, is purposefully confusing the public about bail reform by falsely linking the modest changes to a sensational instance of crime – in this case, a shooting in midtown Manhattan – and by invoking past cases unrelated to the current incident

The NYPD has a history of lying and manipulating data to misrepresent and attack even modest reforms, allowing them to overcriminalize and terrorize Black and brown communities and obfuscate their own inability to prevent instances of harm. News outlets allowed the NYPD to continue the pattern this week, instead of highlighting the ways in which bail reform upholds freedom, protects public safety, and saves taxpayer dollars.

If we truly care about public health and safety, we need to follow the facts and data, not fear. We know that pretrial incarceration can exacerbate drivers of crime. By destabilizing and disrupting people’s lives, pretrial incarceration increases the likelihood of future arrests and undermines the health and safety of individuals, families, and their communities. If jail were an effective public safety measure, people would not continue to commit crimes after release.

A person’s repeated contact with the criminal legal system is a sign of the system’s failure, not a sign of the need for increased contact. As Dr. Jonathan Giftos, the former Clinical Director for Substance Use Treatment in NYC jails, writes, “We have to stop blaming bail reform for failures of our social safety net and we must recognize the previous approach failed in much more traumatic ways.”

Bail reform is a successful public policy

Bail reform in New York was modest. Bail reform chipped away at the state’s two-tiered system of justice, in which wealthy New Yorkers were free as they awaited trial and low-income New Yorkers were caged pretrial because they could not afford to pay bail. 

With years now of hindsight, data, and analysis, it is clear now that bail reform has been a major public policy success, one that maximizes freedom, safety, and fiscal responsibility. Pretrial arrest rates are almost identical pre- and post-bail reform. A recent report shows that just 2.4 percent of people released were rearrested on a violent felony – meaning 97.6 percent of defendants were not. In New York City, a higher percentage of defendants have returned to court since bail reform than during a four-year period before the law went into effect. There is categorically not connection between the increase in crime and bail reform.

Outlets highlighted Hernandez’s arrests since his release in 2017 to fearmonger and suggest the efficacy of carceral policies. But we know incarceration is expensive, ineffective and harmful. Despite the necessary, successful changes of bail reform, the cash bail system is still very much alive for violent felonies and many non-violent felonies and misdemeanors. Bail continues to siphon money away from low-income communities; In 2021, detained New Yorkers and their families posted $268 million in bail, up from $186 million in 2020, while nearly half of felony arrests in New York result in dismissals.