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Why Is New York’s Bail Reform So Controversial?

Critics like Mayor Eric Adams say bail reform should be rolled back. Are they right?

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Criminal justice reform protesters advocated outside the Manhattan District Attorney’s office for the end of cash bail after a dozen people died in city jails, Oct. 6, 2021.

Ben Fractenberg/THE CITY

The subway shoving death of Michelle Go and murder of Christina Yuna Lee in Chinatown last weekend have once again drawn out critics of New York’s bail reform, which prohibit cash bail for most misdemeanors and non-violent felonies. 

Those critics include Mayor Eric Adams. In a recent trip to Albany, he pushed to amend the bail laws, including giving judges more discretion over who to lock up pre-trial. State legislative leaders responded with a hard no.

Such political wrangling is hardly new. Ever since bail reform was passed by the state legislature in 2019, the law has been hotly debated. Weeks after those changes took effect in 2020, a spate of hate crimes against Jewish New Yorkers spurred a backlash. In response, lawmakers passed tweaks to the law in April 2020. 

The recent shooting deaths of two NYPD officers, as well as the death of a teenage fast food worker in Upper Manhattan, have also intensified the controversy over the new bail laws.

While some blamed Lee’s murder on the bail reforms since her accused killer had eight prior arrests in New York, including a recent arrest in January, the Daily News found that the reforms did not contribute to the suspect walking free. 

The specifics of the law are hard to parse, especially amid emotionally-charged debate from all parts of the political spectrum. Combined with the fact that much of the rollout of the law happened during the pandemic’s early days, you’re forgiven if the issue has flown over your head. Let’s break it down: 

What is bail?

Cash bail is the amount of money that accused defendants “must post to be released from custody until their trial,” according to the American Bar Association. It’s designed to ensure that defendants show up for pretrial hearings — and the trial itself.

Defendants are supposed to get their bail money returned to them after a trial concludes. In New York City, a 3% fee is deducted if you are convicted of a crime. If you are found innocent, you get a full refund.

People wait to enter Queens Criminal Court while COVID restrictions were in place, Nov. 8, 2021.

Ben Fractenberg/THE CITY

The fees can range from hundreds to thousands of dollars, and in some cases into the millions. The amount is typically set at someone’s very first court appearance, an arraignment, “when that person is legally innocent,” said Jared Trujillo, policy counsel at the New York Civil Liberties Union and a former public defender.

How do defendants pay bail?

There are typically two ways to pay. One is cash bail, where a defendant pays the court the full amount set by a judge. 

The other is through commercial bonds, where a defendant (or their families and friends) pay a for-profit bail bond company a non-refundable percentage of the bail amount. The company then pays the court the full bail amount.

Cash bail is used in many countries, but the United States and the Phillipines are the only places where the for-profit, commercial bail bond industry is legal.

If the bail amount can’t be paid either way, then the person has to wait in jail until their trial ends. 

“Bail is ransom that the government is allowed to charge,” Trujillo said. “This is money that someone has to pay in order to secure their freedom.”

So why did New York change its bail laws?

To understand the present discussion, we need to learn a bit about the past. Prior to 2019, the last time New York overhauled its bail laws was in 1971.

Critics of New York’s old bail laws argued that they penalized poverty, creating a two tiered criminal justice system in which the wealthy can post bail while they await trial while the poor who have to sit in jail. 

A bail bonds firm near the the Bronx criminal court building, Dec. 3, 2019.

Ben Fractenberg/THE CITY

The inequities of the cash bail system were laid bare in 2015 following the death of 22-year-old Kalief Browder. As a Bronx teenager, Browder was arrested for allegedly stealing a backpack. Because his family couldn’t raise $3,000 to post bail, he was detained for three years at Rikers Island, the bulk of the time in solitary confinement. 

Browder was released in 2013, after the charges were dropped and went on to speak openly about the toll the time behind bars took on his mental health. He killed himself two years later. 

So how do New York’s current bail laws work?

Cash bail is prohibited for most misdemeanors and non-violent felonies under the 2019 changes. In these types of cases, judges are required to release people with the least restrictive conditions imposed to ensure they return for their court dates. 

For violent felonies and some misdemeanors, such as purposefully trying to prevent someone from breathing, judges have discretion over how to use an arsenal of tools available to make sure a defendant returns to court — such as setting bail, electronic monitoring, surrendering passports or treatment programs. Judges can also hold people in detention pending their trial in very serious cases. 

When judges set bail, they have to take into consideration someone’s ability to pay and offer  various options, including where either no money is required upfront or only a percentage, known as a “partially secured bond.”

What happened when the reforms went live?

In the days before the reforms took effect on Jan. 1, 2020, a series of anti-semetic attacks in Brooklyn ignited media coverage that connected the attacks with the new laws. Some suspects of the attacks had been released without bail; tabloids and Republican lawmakers seized on the narrative to attack the reforms, which had already been met with skepticism by law enforcement and some judges

Within days, then-Gov. Andrew Cuomo signaled that the reforms were a “work in progress” and needed to be modified. 

By early April 2020 — as the state was grappling with an onslaught of COVID-19 cases — state lawmakers made adjustments to the reforms, broadening the list of bail eligible offenses. Among the latest additions is a provision that allows judges to set cash bail for anyone considered a “persistent felony offender.” 

Why is bail reform such a hot issue?

In November 2021, Republicans in and around New York City handed Democrats some bruising losses. Their unexpected gains were widely credited to a platform that emphasized public safety and assailed bail reform. 

Following his election, Adams — a former cop —  surprised fellow Democrats when he said one of his top priorities would be rolling back some of the reforms and allowing judges to consider a defendant’s “dangerousness.”

Facing an increase in crime when he entered office in January — including the shooting death of two NYPD officers, an officer shot by a teenager who was released from custody after posting bail and a stray bullet hitting an 11-month-old — Adams doubled down on his calls to change the laws. 

State legislative leaders and key state lawmakers — all Democrats — have remained firm in their opposition to change how bail is done. 

Has New York’s bail reform laws had an impact?

There are a lot of metrics to look at if you want to measure the impact of cash bail reform. How many people remain incarcerated before a trial? How many people successfully returned to court for hearings or their trial? And how many people awaiting trial were rearrested?

But measuring those things “takes time,” said Amber Widgery, principal of the criminal and civil justice program at the nonpartisan National Conference of State Legislatures. Getting good data is tough, a new policy may take years to be fully implemented, and backlash to it may come faster than definitive results.

“The public narrative often changes more quickly than what implementation takes place,” she said.

Still, there are some data points worth looking at in New York. The state’s jail population saw a significant decline in the months after the first cash bail reforms took effect, according to state data tracked by the Vera Institute of Justice.

Bronx Criminal Court on East 161st Street, Feb. 15, 2022.

Ben Fractenberg/THE CITY

In the first year New York’s new bail policies took effect, nearly a fifth of all defendants were rearrested for a crime of any kind, and 2% of the total led to a rearrest for a violent felony, according to the Office of Court Administration.

To Trujillo of the NYCLU, there is one definitive positive result so far of the bail reforms: an absence of trauma for people who otherwise would be locked up on Rikers Island. That means that people accused of crimes are able to go to work, stay in social services programs, or are able to take care of their families.

Have bail reforms led to increased crime?

It’s hard to say. It is certainly true that at the same time the bail reforms were going into effect in 2020, violent crime rose in New York — but there was also a pandemic with various devastating economic and psychological effects on society. Many critics of the bail reforms, including former Police Commissioner Bill Bratton in a recent op-ed in the Wall Street Journal, argue there’s a correlation between the spiking crime rate and bail reform. 

During this same period, however, violent crime also increased in major cities across the country — without bail reform — and New York’s figures are in keeping with that trend. The city’s crime levels remain relatively low compared to the past few decades, and New York is still safer than many U.S. cities, the Associated Press recently reported.

Where else has bail reform been tried, and what happened?

First, it’s important to note that, as of now, no state has “fully implemented an elimination of money bail, in law,” said Widgery, of the National Conference of State Legislatures.

“Every state still retains money bail on the books, to some degree,” she said.

However, a handful of states have made major changes — or are about to, like Illinois. Here’s what we know about each:

  • New Jersey — Garden State voters enacted their own bail reform laws in 2014 after a special committee studied the issue for nine months with a group of prosecutors, lawmakers and reformers. The law took full effect in 2017 and after 5 years of implementation, it has apparently achieved its purpose. The number of people imprisoned pre-trial on bail of $2,500 or less fell from more than 1,500 before the bail reform laws to just 14 people last year, according to the New Jersey court system. At the same time, the rate of people awaiting trial who commit additional “indictable offenses” has remained flat at 13.8%. And the appearance rate — how often people awaiting trial come back to court — increased slightly last year, from 90% in 2019 to 90.9% in 2020. Last fall, as that latest round of annual benchmark statistics came out, New Jersey Law Journal’s editorial board declared “Bail Reform is Working.”
  • Illinois — The Prairie State is the first in the country that has successfully enacted legislation “to do away with money bail altogether, across the board, for any level of charge,” said Widgery. That’s a big change, passed by the state’s legislature in early 2021. But we don’t yet know how it will play out because the state has yet to fully implement the law. It is slated to go into full effect in January of 2023.
  • California — Lawmakers in the Golden State passed a bill in 2018, known as SB-10, that would have eliminated cash bail entirely. But it never hit the streets. In a voter referendum brought to the ballot by the state’s bail industry, Californians nixed the law in the fall of 2020. In early 2021, the California Supreme Court ruled that cash bail cannot be set for those who cannot afford to pay it, but lawmakers have yet to revive efforts to fully eliminate bail in the state.

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