Why Is New York’s Bail Reform So Controversial?

Yves here. The subject of bail reform is a hot button issue and therefore produces a huge amount of emotionally charged and often anecdotally (at best) driven claims.

Some things to consider:

1. The premise of the US jurisprudence system is supposed to be “innocent until proven guilty”. Incarcerating someone who has merely been accused to make sure they show up for trial isn’t even remotely consistent with that, um, stance.

2. A second rationale for pre-trial incarceration is that the suspect is highly likely to commit a crime again before trial. Judges wind up making snap decision on remand v. bail (and the level of bail) based on snippet-level arguments from the prosecution and defense on the heinousness of the alleged crime (assuming the accused did it), the accused’s past record, and his incentive and ability to flee. Although it is not dispositive, the data in NYC says so far that the pre-trial recidivism, at least in terms of violent crime, is only 2%. But violent crime generates headlines, so even if this might be a very good number in theory, press coverage could lead to opposite conclusions.

3. A third issue is that these pre-trial jails are often horrific. Rikers is a cess pit. If you accept proposition #1, pre-trial gaols should be Club Feds, where you aren’t free to go but the conditions are otherwise tolerable. And weirdly, despite our high-surveillance society, I don’t recall hearing of cases ex the rich of putting pre-trial defendants under house arrest. Do we believe poor people won’t be as respectful of an ankle bracelet regime as the well off?

4. An offsetting consideration this article does not discuss is fear of potential victims when an individual accused of a crime is still out in the community. Here I mean those who were (or believe they were) physically harmed by the accused or are witnesses who fear intimidation or worse. For instance, consider a domestic violence victim who has a jealous ex who has repeatedly violated restraining orders and is now charged with beating her. And the police don’t begin to have adequate resources to provide a protective detail.

By Josefa Velasquez and Rachel Holliday Smith. Originally published at THE CITY on February 21, 2022

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.

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.

Have 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.

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

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.
Members and sponsors make THE CITY possible.

“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.

This story was originally published by THE CITY, an independent, nonprofit news organization dedicated to hard-hitting reporting that serves the people of New York.

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  1. MP

    The whole discussion in the city is like watching a debate occur through a kaleidoscope. It is just accepted wisdom because of The Post, Fox News, and the local press that when a local crime occurs, people just grumble “bail reform” with no context, further discussion, it’s just taken as fact that bail reform ipso facto means that criminals are being released and crime will go up as a result. My one retort, something that is never brought up in the media or in popular discussion is: OK, so what was it before? You got an amount of bond you had to pay, and regardless of how dangerous you appeared to be, you paid your bail and walked away. Meaning that the rich and powerful, like, say Harvey Weinstein, can walk free with no cause for widespread concern. Weinstein, as was reported, posted a $1 million bail and went out on the town and to comedy clubs before his trial. Again, I find this issue so repugnant in the discourse because what this means is that the powers at be want status quo ante, where rich and powerful sadists could walk free if they met the dollar amount, but a child can be put into a torture chamber based on mere suspicion and a barrier of exit that even middle class people would struggle with, like with Browder’s $3,000. It’s sickening and shows an elite in NYC that is so hostile to anything that could alleviate suffering, that they could kill tens of thousands during covid and then spit in our face and say we deserve more militarization, more police, more suffering, more death.

  2. LawyerCat

    One point that I rarely see mentioned about pre-trial detention, beyond the inversion of the presumption of innocence and the damage to a person’s ability to work, arrange their affairs etc. while incarcerated is that it’s designed to coerce guilty pleas.

    I often am put in the position where I’m talking a client through the amount of time they will spend incarcerated, pre-trial, and fighting their case versus entering a plea on the best early offer I could negotiate. Many, many times, pleading guilty, even within a week of arrest, means a shorter period in jail. This, to my mind, is a de facto coerced plea in violation of the Fifth Amendment.

    Hell, I currently have a client who wants to plead to a maximum misdemeanor sentence because his time in jail will be shorter that way than waiting for his case to be indicted.

    What’s unstated from the DAs offices and police departments is that coerced please are the grease that allows our bloated and under-resourced criminal justice system to chug along. There’s no will or capability to actually have trials for everyone who gets accused criminally.

    1. JBird4049

      What I want to know are the various loopholes that make Constitutional a three year wait for a trial?

      I assume it is like civil asset forfeiture where everyone from the local police in Nowhereville to the FBI to take all your financial assets from cash to retirement funds, all property from cars, homes, businesses, and baby toys even when never charged but merely suspected of a crime. Then there there is qualified immunity for the police. And so on.

      I believe that too many people think that only “those people” are every arrested or must be guilty of something anyways so why the worry about rights, due process, and certainly not justice. It does not help with the growing class divide which helps people to hide from reality with comforting propaganda.

      Also courts are already stacked with conservative and often former prosecutors, which has been a multi decade effort by the Republicans and their paymasters. Not that the Democratic candidates are much less conservative when it comes to corporations. Senator Mitch McConnell used the distraction with the stimulus checks, Trump hate, and the then Republican control of the Senate to fill the many empty seats, which the “Free Press” did not cover.

  3. t

    We need to talk more about the ginormous financial institutions behind bail. People often think the storefront bailbonds are where the money comes from, even though they know their car insurance agent is not Liberty Mutual.

  4. 430MLK

    I’m watching a version of this debate play out in Louisville, KY, where a candidate for City Council recently shot at the Mayoral frontrunner. The shooter was active in the 2020 BLM protests there and has been bailed out ($100k) by a local bail fund that had money left over from the donations it got from 2020.

    The Mayoral frontrunner (Craig Greenberg, Democrat, Jewish, downtown developer), who had centered his campaign on public safety, has since taken to repeating the line of one of the Republican council members: attempted murder on Monday, home for dinner by Wednesday.

    At the state level, Republicans have been pushing a bill to ban non-profit bail funds from operating. My guess is that, in bailing out the alleged shooter, the Louisville group pretty much ensured that this bill will now pass.

  5. Buckeye

    The Right wing is NEVER vilified for it’s PRO-CRIME policies of spreading poverty, flooding our cities with guns, and its legalistic horse manure “Government has no obligation to protect you”.

    The FBI, CIA, Justice Department, law schools, Chiefs of Police association et. al have reported for more than 50 years that 80% of crime is driven by poverty. End poverty and the crime rate will drop like a stone, and the police can focus on the sociopathic criminals. Conservatives have long used this tactic in foreign policy to destabilize other governments, forcing citizens into the arms of Fascist parties. In this century Conservatives have talked about targeting Democratic or Left leaning areas for Poverty/Crime subversion attacks. ( I saw an article several years ago on War on the Rocks, with links to other domestic terror reports, by an Army counter-intelligence officer that presented evidence of a deliberate policy. If can find the link in their archives I will try to post it here.)

    Pumping guns into cities and Democratic areas has been going on for 20 years now. NYPD had intelligence officers come here to Northeast Ohio and spy on the gun shows that are common here. They found (ATF as well) that known Right wing political operatives and militia members were buying guns here and trafficking them into New York and Democratic controlled areas through Black (!) criminals and street gangs. This is right out of the Pentagons’ covert warfare playbook. A classmate of mine who is FBI has confirmed this to me verbally: “we know it for a fact, but our hands are tied by politics. Don’t mention my name, by the way.”

    Conservatives always scream “It’s not Governments job to protect you!” Their judges have blatantly said this from the bench. They don’t want “crime prevention” by Government but they sure do want retaliation and social tyranny by Government “tough on crime” conservatism, don’t they.

    Lets not forget the spreading of drugs into Black and poor white neighborhoods by various “anti-Communist” agents in the 1950’s, 60’s and 70’s. All so they can beat people down with “tough on crime” tyranny.
    And make money in the process.

    This “crime wave” smells like Grey Zone Warfare exploiting social stresses.

    Time to start screaming about “Pro-Crime Conservatives” and the policies they push.

    1. JBird4049

      While I loathe the Republican Party, the Democrats are just as responsible for all the ostensibly “tough on crime” laws, and both parties use guns, just as with abortion and drugs, to pass laws to gin up controversy while solving nothing except to put more people in prison. There is very little to choose from except for which is the slightly lesser evil.

  6. upstater

    A 93 year old retired teacher, tortured and killed in her apartment by a 24 yo woman. She left the rotting body while using the apartment as a drug den. In the week prior she violently attacked a 74 yo woman. No bail required, was arrested in a stolen vehicle, again released, no bail. This was the only non paywalled article; others were even more chilling:

    Accused Skyline Apartments killer admitted to murder before body was found, police say

    Afet has a lengthy history of arrests, including a robbery charge stemming from an attack on a 74-year-old at Skyline on Feb. 18, records show. A judge released her the next morning. Tuori was believed to have been killed a week later.

    Yeah, bail is a problem. But woke do-gooders don’t get it. They probably live in segregated McMansion communities or buildings with doormen. Maybe if the GINI coefficient was 25 instead of 50 there would be far less crime.

    My daughter and a co-worker were killed by a drunk driver (laughably a “non violent” offense, even though she was dismembered). Thankfully he was held for 608 days before sent to prison when he couldn’t make bail. The monster goes free in September…

    1. Arizona Slim

      Sounds a BIT like a problem that my neighbors and I have been experiencing. There’s a guy who used to live in the neighborhood, and let me tell you, this guy is a one-man crime wave.

      Several of us have been threatened by him, and, yes, he has done prison time for assault and battery. We have very good reasons for being afraid, and we have been trying to get the police to work with us. For years, in fact.

      The crime he got away with was murder. Yes. Really. He did.

      Guy beat up his grandfather and the man later died. Our former neighbor was never charged with this crime.

      I might add that Crime Wave is, shall we say, of a darker complexion than many of the rest of us. However, when it comes to seeking police protection from him, some of our most vocal neighbors have been of a similar complexion.

      Recently, we have been breathing a sigh of relief. He hasn’t come into this neighborhood to visit his buddies at the drug house. (That’s another ongoing headache.)

      Suffice it to say that we neighbors wouldn’t feel the least bit sorry for this guy if he got locked up without bail. He’s a career criminal, and it’s time for him to be off the streets.

    2. JBird4049

      The problem is how to ensure that the accused and presumed innocent person does not spend weeks, months, and sometimes years before going to trial. This is how prosecutors force people to plead guilty even when innocent. Maybe sentenced to time served or remain rotting in jail often facing far too many charges for that is another incentive to plead guilty.

      Many of those convicts were condemned by the system that does not care about guilt or innocence, but only cares about getting convictions. Just how do we stop having the many more destroyed lives like Kalief Browder’s or are we all okay with a system that presumes guilt and condemns the accused to imprisonment even before trial much like how using civil asset forfeiture billions in cash and property often without even charges every year?

  7. Dave in Austin

    My condolences to Upstater.

    Underneath this all is the 75 year-long stretchout of crimianal trials via, motions, pleadings, not enough judges, lawyers who get three weeks to respond to pleadings then get a continuance, DNA labs with a 6 month turnaround, the preference for not upending a lawyer’s vacation plans, etc.

    For crimes where there is real evidence and real witnesses the trial should happen within two weeks. And if the person can’t find a lawyer? Well, lawyers need not have a 4 year degree in basket weaving from an accredited institution and a $40k/year tuition for three years in law school to try drunk driving cases. Under our present system Lincoln couldn’t be a lawyer.

  8. KD

    The problem with ankle bracelets is that i.) they cost money, ii.) you have to have a stable address with phone access. Right now, “equally” the rich and the poor should both be able to get electronic monitoring but guess what, the guy with real estate and a bank account gets it and the homeless dude on SSI doesn’t.

    Even if you had some kind of grant to cover the cost of electronic monitoring (and I’m afraid its another state empowered private monopoly), it is still not going to overcome the need for stable housing, which many defendants lack. The deck is stacked, but you knew that.

    1. Yves Smith Post author

      I doubt that many of those who are charged are homeless. 15% of FORMERLY incarcerated people wind up homeless at some point in the first year after being incarcerated, which is actually lower than one would expect given the difficulty of getting re-established after prison. This figure is almost certainly much much lower among the accused.

      However, this may be happening in some cities because they have criminalized homelessness:


  9. Divaker V Vittal

    Bail for civil offences (not criminal offences) are often provided by personal guarantee, usually by the family members, respectable citizens of locality, member of legislative assembly and parliament including the Police personnel themselves who file the case.

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