Among the issues currently threatening to derail talks over the New York State budget, which is putatively due on Saturday, April 1, is a usual suspect: New York’s new three-year-old debate over its landmark bail reform.
The bail laws have of course been the subject of more or less nonstop controversy since they were first passed in 2019, propelled by the growing public consensus and pressure around the failures of the tough-on-crime policies popularized in the late 80s and 90s. The social and political movement was catalyzed by the Black Lives Matter and police accountability protests that took place throughout the mid-to-late 2010s and demanded not only that the authorities cease engaging in discredited policing practices, but that policymakers reform criminal justice laws themselves to shift things at a system level rather than relying on individual officers or departments to make changes on their own.
Access to capital
An obvious target was the bail system, which at its heart rests largely on the dubious premise that your ability to be released from criminal detention pre-trial — i.e., legally innocent — should at least partly depend on your access to a certain amount of capital, or willingness to get a probably unsustainable high-interest bond to cover it. This had the knock-on effect of driving a good number of people to just plead guilty right away, not because they were necessarily guilty, but because they couldn’t afford to spend weeks, months, or years behind bars while their case was cleared up — often at Rikers Island, which as we’ve written extensively, is not a safe place to be.
The thing to remember is, for practical purposes, having your case ultimately dismissed or being found not guilty in the very rare instances where cases go to trial doesn’t fix any of the issues that prolonged detention may have caused. It doesn’t get you back to where you were when you were arrested; there’s a good chance you may have lost your apartment, your job, maybe even custody of a child, all consequences you could have avoided if you happened to have a few thousand dollars to pay for bail.
Eliminating cash bail
These were the considerations that drove New York policymakers to pass significant changes to the state’s bail laws in 2019, which broadly eliminated cash bail altogether for almost all misdemeanors and nonviolent felonies, with exceptions for only certain crimes related to, for example, sex offenses, domestic violence, and witness tampering. The law required judges to take financial resources when setting bail for anyone, and in cases where they could not set bail or remand (detain without bail), prompting them to release defendants on their own recognizance or set conditions like supervised release. In all cases, they had to take the “least restrictive” route to ensuring that the defendants would return to court
That last part is key, because though subsequent reforms in 2020 and 2022 expanded the list of bail-eligible offenses and increased judges’ power to set conditions, the standard remains one ensuring return to court exclusively, leaving New York alone among all 50 states in not having a so-called dangerousness standard, i.e. not permitting judges to evaluate how dangerous an individual is when making bail and remand determinations, versus just whether they’ll return to court. This dangerousness standard has become a fixation among certain bail reform critics, including Mayor Eric Adams, and is now a sticking point (among several others) in ongoing negotiations around the state budget, with critics pushing for the bail laws to be amended yet again with the introduction of the dangerousness standard.
How do you measure someone’s “dangerousness?”
We should pause here for a second and note some practical realities. First, the absence of the explicit standard in the law certainly doesn’t and hasn’t prevented judges from de facto assessing the dangerousness of defendants and acting accordingly. Whether they have to say it’s because of a flight risk or dangerousness consideration often ends up being more of a semantic distinction than a functional one. As some critics have pointed out, judges used to use high bail as a sort of marker of their belief in the dangerousness of a certain individual, which is exactly what the reforms are trying to prevent. Judges are of course not infallible, and a snap judgment of who is and is not dangerous will obviously run the risk of incorporating various biases, including racial and ethnic.
More broadly, the impact of the reforms have been a kind of Rorschach test for political ideology. If crime is going up, it’s because the reforms have failed and criminals are being let out onto the streets left and right to terrorize communities. If crime is going down, then it’s because the reforms have succeeded and proven that an unfair and overly punitive approach not only didn’t keep people safe but made crime more prevalent by destabilizing lives and making people distrustful of the criminal justice system writ large.
So what’s actually happened? In the aftermath of the implementation of the bail laws in 2020, crime rates rose across the board, a situation often pointed to by reform critics as clear evidence that eliminating bail was a driver of crime. Yet, for obvious reasons, 2020 was not exactly a great year to draw conclusions from year-over-year data, given the global public health emergency and social meltdown and all that. Crime rose in New York City, but it also rose in cities around the country, including many that hadn’t touched their existing bail laws. In the time since, certain categories of crime, like burglaries, have kept rising, but the most serious violent crimes, like shootings and homicides, have started falling again, and New York remains one of the safest cities in the country.
Studies that have tried to examine the impact of the bail reform very specifically have generally found that it doesn’t lead to increased crime. A recent study by a group within John Jay College tried to infill some of the data gaps with a detailed look at reoffense rates found that the elimination of bail actually made defendants less likely to be rearrested for most crimes, except for violent felonies and firearms offenses, where it didn’t seem to make much difference either way. Nonetheless, the discussion around bail reform, as with many political issues, has taken on an emotional tenor, with a perception of out-of-control crime driving much of the push for reform.
Advocates on pretty much all sides here are also frustrated that the bail conversation, neverending as it is, is crowding out other important criminal justice debates, including over discovery laws, conviction integrity, court delays, and other salient issues. One thing is clear though: the bail reform back-and-forth, with all its political glitz, is not likely to go anywhere soon.