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Should Jews Oppose Bail Reform?

Three prominent progressive rabbis and community leaders say doing so sparks racism; Liel Leibovitz responds

Matt Nosanchuk, Rabbi Sharon Kleinbaum, and Rabbi Rachel Timoner
January 02, 2020
Photo by Stephanie Keith/Getty Images
People hold signs of support near the house of Rabbi Chaim Rottenberg on Dec. 29, 2019, in Monsey, New York Photo by Stephanie Keith/Getty Images
Photo by Stephanie Keith/Getty Images
People hold signs of support near the house of Rabbi Chaim Rottenberg on Dec. 29, 2019, in Monsey, New York Photo by Stephanie Keith/Getty Images

Jews in New York—especially those living in Orthodox communities—are on edge. Repeatedly during the eight nights of Hanukkah, while most American Jews celebrated religious freedom by proudly placing our candlelit menorahs in the window, visibly Orthodox Jews living in Haredi and Hasidic communities in New York were under attack. While some of us can “pass,” all of us are targets. Eight anti-Semitic incidents were reported in New York City during Hanukkah. Then, on Saturday evening, an intruder wielding a machete entered the home of a rabbi lighting candles on the seventh night with his community. The attacker severely injured four people, one of whom still remains hospitalized in critical condition.

This succession of anti-Semitic attacks is both terrible and terrifying, and this is a moment when all Jews must stand in solidarity with Hasidic and Haredi Jews, in opposition to rising anti-Semitism generally and the anti-Semitic attacks that have been targeting them specifically. Despite our differences, we must remain united and undivided in our resolve to combat anti-Semitism, wherever and however it originates.

We welcome the support that has been forthcoming from African American, Muslim American and immigrant community leaders who are eager to work with the Jewish community to develop effective approaches to addressing the anti-Semitism that motivated these attacks.

That is why Liel Leibovitz’s column, “Sitting Ducks,” was so troubling. At a time that calls for unity and finding common ground to develop real solutions to a serious problem, he is pinning blame for the attacks squarely upon the city’s “Democratic political establishment,” “progressive politicians,” and “left-leaning Jewish organizations,” accusing them of “no longer working to protect us.” Rather, Leibovitz accuses them of “encouraging more attacks, and escalating the violence against our community.”

Leibovitz’s example-in-chief is “criminal justice reform,” which he derisively refers to in quotation marks. In particular, he focuses his disdain on New York City’s implementation of the new bail reform law. Leibovitz suggests that the city’s implementation of bail reform has resulted in the release of dangerous criminals onto the streets who have in turn targeted Jews in anti-Semitic attacks.

Suggesting that bail reform and criminal justice reform are at the root of these anti-Semitic attacks is irresponsible and inaccurate. Leibovitz appears to be oblivious to the fact that the new law does nothing to alter New York’s existing statutes, prohibiting judges from factoring into the decision on bail whether someone poses a danger to the community. He also betrays what is either bias or ignorance by describing bail reform as New York City Mayor Bill de Blasio’s “new sentencing guidelines.”

In so doing, Leibovitz overlooks the fact that in this nation one is presumed innocent until proven guilty. Bail is what a court requires an individual who has been arrested and charged with a crime to pay in order to be released until their trial. A sentence is what the court imposes only after that individual has been convicted.

Undoing bail reform will do nothing to help address the increase in anti-Semitic attacks or increase the safety and security in Orthodox communities.

Moreover, bail reform was supported by the mayor, but it was enacted by the State Legislature and signed into law by Gov. Andrew Cuomo in order to address a serious, systemic, racist dysfunction in the criminal justice system that caused many individuals charged with nonviolent crimes, but not yet convicted, to remain behind bars because they could not afford to post bail. They became the targets of bondsmen who charged predatory interest rates and their inability to post the high bail amounts left them behind bars for months, sometimes years, even though they had not been convicted of any crime. The regressive and discriminatory bail system has played a central role in helping to perpetuate the catastrophic racial disparities that have decimated confidence in the fairness in our criminal justice system.

New York’s overdue bail reform law, which tracks similar legislation already enacted in New Jersey and California, eliminates cash bail in an estimated 90% of cases, but this applies only to misdemeanors and nonviolent felonies. In cases involving the most serious crimes, including nonviolent felonies, judges retain the discretion to impose cash bail requirements. Moreover, the new law does nothing to hinder the ability of judges to impose nonmonetary conditions, such as pretrial supervised release.

Undoing bail reform will do nothing to help address the increase in anti-Semitic attacks or increase the safety and security in Orthodox communities. What it will do is perpetuate the racial injustice that inheres in criminal justice system and deepen divisions among the various communities that need, more than ever, to be finding ways to work together to address anti-Semitism.

Rather than making incendiary arguments about bail reform, we need to be taking a serious look at strategies that will actually reduce hate and prevent anti-Semitic attacks against Orthodox Jews from recurring.

These include constructive approaches being advocated by key elected officials in New York that have the potential to be far more effective, because they focus on community building and on bringing together diverse stakeholders.

Gov. Cuomo released a powerful statement of solidarity, which he signed along with an inclusive, diverse and interfaith array of more than 130 faith leaders (the authors of this op-ed are among them), recognizing that we have a shared responsibility to combat anti-Semitism, bigotry and hatred in all of its ugly manifestations because, as the statement makes clear, “an attack against one of us is an attack against all of us.”

Mayor de Blasio has deployed an increased security presence at sensitive religious locations and high-density Orthodox areas. This is part of a broader strategy that also includes new Neighborhood Safety Coalitions that will bring together diverse stakeholders, creating an entity that maintains a physical presence in the community with neighborhood safety walks and corner watches. When hate crimes occur, the Neighborhood Safety Coalitions will mobilize a community response and conduct ongoing programming that promotes tolerance and breaks down stereotypes.

In addition, recognizing the crucial role education can play in preventing hate crimes from occurring, the mayor also announced that the city’s Department of Education will implement neighborhood-specific hate crimes curriculum for middle and high school students, as well as a citywide program that will discuss discrimination and religious intolerance and identify ways to promote acceptance, inclusion and diversity. Such programs must be broadly inclusive of all stakeholders and address other forms of bigotry and hatred, not just limited to antisemitism.

To increase physical security at religious institutions, Democratic Sen. Chuck Schumer proposed quadrupling $90 million in funding that has already been allocated for the federal Not-for-Profit Security Grants Program. This program provides grants to nonprofits at risk of being targeted, including synagogues, mosques, churches and other faith-based community centers, enabling them to improve the security of their facilities.

Finally, we need to address the significant role that mental health plays in hate crimes. At least one third of the anti-Semitic attacks in New York have been committed by seriously mentally ill individuals. As a society, we have virtually abandoned treatment of those suffering from serious mental illness, and treatment programs must be strengthened.

Much more work needs to be done to build on these measures, including building coalitions and channels of communication within the Jewish community, as well as with leaders in the African American community and other allied communities, all of which have offered their active support. These proposals represent a more promising beginning to the development of more thoughtful and effective responses to the anti-Semitic attacks in Orthodox communities. It is critical that we avoid divisive approaches, like advocating for rolling back bail reform, which will hurt innocent people and only serve to amplify divisions and perpetuate cycles of violence.


Liel Leibovitz replies:

A good place to start, if you wish to understand the progressive position and its inherent failings, is this recent op-ed, written in response to my argument by two rabbis and a former Obama administration official.

When you live, as so many of today’s educated Jews do, in a left-leaning bubble, it’s easy—and cost-free—to go on autopilot and substitute platitudes for a substantive response. But because the questions at hand are about the realities of criminal justice reform and its effects on targeted Jewish communities, many of whose members live below the poverty line in New York City, it behooves us all to take a step back and examine this thorny issue.

“Leibovitz,” wrote my detractors, “overlooks the fact that in this nation one is presumed innocent until proven guilty. Bail is what a court requires an individual who has been arrested and charged with a crime to pay in order to be released until their trial. A sentence is what the court imposes only after that individual has been convicted.”

No one in their right mind advocates holding innocent people in custody ad infinitum. Nor do most opponents of New York’s current bail reform deny that the bail system was deeply flawed, or that people are arrested—and sometimes convicted—of crimes they didn’t commit, or minor public nuisance offenses.

And yet, hate crimes against Jews aren’t a minor public nuisance crime, like littering or smoking or selling pot. They endanger Jewish lives. And as flawed and faulty as the bail system was, it served one very important purpose—giving judges an important tool they now no longer have.

My critics noted that “similar legislation” was already enacted in New Jersey, California, and elsewhere. That observation dangerously ignores one key distinction; as The New York Times reported earlier this week, “While New Jersey, California, Illinois and other states have limited the use of bail, New York is one of the few states to abolish bail for many crimes without also giving state judges the discretion to consider whether a person poses a threat to public safety in deciding whether to hold them.”

While New York City judges are not permitted to consider the likelihood of a person committing future crimes if released from custody—New York is one of a handful of states that does not permit preventive detention, or the justice system’s ability to hold someone in custody if said person is believed to pose a risk to public safety—they were, until two days ago, encouraged to consider the probability of a person failing to show up for trial if released. The logic here is simple: Someone with prior convictions and open cases for similar offenses is likely to face a heftier sentence if convicted, which makes that person more likely, once released, to flee and fail to show up for his or her day in court.

Let’s take the case of Tiffany Harris, a woman who attacked three Orthodox Jewish women in Brooklyn last week while shouting anti-Semitic slurs. Under the old system, a judge considering Harris’ arrest last November would have seen that she had already been arrested for a similar offense a year prior, and would have likely set bail high enough to make sure Harris doesn’t skip her court date and evade justice. A higher bail might have kept Harris behind bars until her trial, which would have spared several New Yorkers, including the three Orthodox Jewish women, the trauma of a brutal assault.

This is not just a string of hypotheticals; it also acknowledges that while laws are laws, judges and police officers and prosecutors are human. If you talk to law enforcement officials in New York City and listen to their frustration, you’d learn that, under the old law, judges would sometimes use the argument of prior convictions and possible flight risk to lock away men who have repeatedly battered their wives, say, or individuals who kept on drinking and driving recklessly. Again, the old system was imperfect, but it gave judges the ability to use their judgment, which the new system no longer permits.

Those who argue for bail reform insist that holding repeat offenders like Harris on bail would be racist. Might four innocent New Yorkers have been spared wanton violence had the judge been allowed to use the imperfect but indispensable tool that allowed holding likely flight risks behind bars until the equally imperfect and equally indispensable court system could find her guilty and send her to prison?

In the history of bail reform, the same objections as those made by critics were raised when President Lyndon B. Johnson did away with cash bail in 1966. They still apply: It’s a vile and terrible system that is likely to cause scores of people to languish behind bars for no other reason than being poor, which often also translates to being members of minority communities. But this vile and terrible system, as the old adage goes, was the worst possible solution—except, that is, for all the others. Under the new system, for example, nonviolent offenders—including, say, folks trafficking millions of dollars in drugs, or foreign nationals laundering large amounts of cash for global criminal enterprises—are bound to be released, even as this means the likelihood of them fleeing justice. Johnson and his Democratic Party learned this the hard way, as his reforms were swiftly countered by voters who had seen their disastrous consequence in action.

And it’s voters who will ultimately judge the political futures of Gov. Cuomo, who the rabbis and leaders praised for releasing a “powerful statement,” and of Mayor de Blasio, who they applaud for having “deployed an increased security presence at sensitive religious locations and high-density Orthodox areas.” That would be the same mayor who never once interrupted his inept presidential campaign to comfort those Orthodox Jews who were beaten or bashed in the face with rocks; who instead appears on TV with Al Sharpton, the leader of the last pogrom in Crown Heights; and who still argues that the violence against Jews in New York, perpetrated almost exclusively by African Americans and Latinos, is somehow the fault of Donald Trump.

In sum, my critics are asking us to rely not only on the kindness of these strangers who have done nothing to protect Jews, but also on a new program that will dispense $90 million to “nonprofits at risk of being targeted, including synagogues, mosques, churches and other faith-based community centers, enabling them to improve the security of their facilities.” I hope they remember that while religion-based hate crimes are overall on the decline—dropping 7% from 2017 to 2018, the last year for which data is available—hate crimes against Jews are rising exponentially, with 57.8% of all attacks motivated by religious bias targeting Jews.

Tragically, our liberal politicians and organizations are so eager to weave together a rosy, intersectional quilt of victimized minorities that they fail to see that it is one minority above all that is being pummeled—most often by members of communities that belong to the progressive mosaic. The solutions they propose to our very pressing problems rob law enforcement officials of the ability to defend us and others. The coalitions they are busy building include too many noxious haters, from Al Sharpton to the Jew-haters of the Women’s March to the stunning number of Democratic lawmakers who have done little to distance themselves from the venomous Louis Farrakhan, or to denounce the evils of black nationalist hate groups. They refuse to turn to other communities and ask that they address the anti-Semitic sentiments that seem to be spreading in their midst.

These are recipes for nothing but disasters, for Jews, New Yorkers, and all other Americans. If you want to solve problems, it is necessary to leave your dogmas at the door, admit inconvenient facts, and demand hard things of others—not just your own community. This isn’t a political position. It’s good, old-fashioned, American common sense.


Read the article that sparked this exchange here.

Sharon Kleinbaum is the Senior Rabbi at Congregation Beit Simchat Torah in Manhattan. Rabbi Rachel Timoner is the Senior Rabbi at Congregation Beth Elohim in Brooklyn. Matt Nosanchuk worked on anti-Semitism issues at the White House during the Obama Administration, where he served in senior roles as liaison to the American Jewish community and on the National Security Council Staff. All three are co-founders of a new, soon-to-be announced Jewish community initiative in New York that will work to combat anti-Semitism as a key part of its mission.