ABOUT BAIL REFORM
Ahead of the 2022 legislative session, there has been an increased appeal from those opposed to criminal legal reforms to change certain New York State laws, such as the pretrial reforms that went into effect in the first half of 2020. Those reforms prohibited cash bail for certain misdemeanors and nonviolent offenses, so that thousands of individuals – all of whom are considered innocent of their charges until proven otherwise – could take care of their families, keep their jobs, and work with their attorneys to prepare their cases.
The calls for rollbacks to bail reform claim these bail law changes have caused an increase in violent crime across the state, stoking public safety concerns about the law’s impact. However, a closer look shows that these claims are either based on no evidence or on faulty data.
The New York City Criminal Justice Agency (CJA) released new data that demonstrates a decrease, not an increase, in the number of people who were arrested while on pretrial release when comparing the first eight months of 2019 with the first eight months of 2021. Moreover, newly released statewide data showed less than 2% of individuals released under the new laws were rearrested pretrial for violent crimes in the year following enactment.
New Yorkers United for Justice (NYUJ) takes a look at some false statements regarding bail reform that have been made by public officials, and lays out the facts.
“Since this effort of being kind and considerate to violent criminals and gang members began, it has been clear that it does not work. It has not made us safer; it has not produced any positive results.” – New York Post
President of the Assistant Deputy Wardens and Deputy Wardens Association
The fact is that New York is safer under bail reform, and the data proves it. An analysis of pretrial rearrests by New York City Criminal Justice Agency (CJA) shows that before bail reform took effect in 2019, about 4.6% people released before their trials were arrested for a new crime. Since bail reform, that number has been reduced to 4.0%.
Any argument that bail reform hasn’t “worked” or has made New York “less safe” is untrue. Bail reform allows people to attend to their families, their jobs, and their cases while they await trial. As a result, fewer people released before their trials commit new crimes.
Nothing has changed in the way most violent crimes are handled at arraignment. Most violent crimes are all bail- or remand-eligible.1 Furthermore, thousands of individuals who were arrested for nonviolent crimes have been able to stay home while their cases unfolded. That means thousands of families were able to stay together and not be needlessly disrupted for a case that would be later disposed of without incarceration.
The number of individuals who have committed new offenses while awaiting trial is tiny compared to the many thousands of people who have remained crime-free while their charges are pending. And cases are resolved more fairly when individuals are home and can assist in their defense.
Even though the law is clear, it may be hard for the public to understand how exactly it’s meant to be applied because the law has not been properly implemented in all cases. For example, there have been reports that certain prosecutors and judges are—deliberately or not—undermining the purpose of the law.
For example, many judges are not availing themselves of their new authorities under the reforms to impose other noncarceral conditions that help ensure the defendant appears in court. These options—from a reminder call to regular check-ins to an electronic monitor (judges can even require mental health treatment)—are proven to be more cost-effective than incarceration, and just as likely to secure court appearances.
1 For a full understanding of the bail law changes, see this explainer from the Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/new-yorks-latest-bail-law-changes-explained
“It starts with stealing a candy bar. It escalates to stealing cars. These kids are not stealing cars to joyride… these kids are stealing cars… and they’re robbing and they’re shooting people.” — WHAM
Capt. Frank Umbrino
Rochester Police Department
Various research has shown that nonviolent crimes are rarely predictors or indicators of violent crime.2 There is simply no available or conclusive data that demonstrates committing petty or minor crimes has any causal relationship with the likelihood to commit a violent crime. Responding to minor or petty crimes with incarceration or imprisonment has not reduced crime; and in fact may encourage it over the long term.3
2 A 2014 study in the Journal of Social Psychiatry and Psychiatric Epidemiology concluded: “People with no violent crimes in their histories rarely commit violent crimes.”
3 Damon M. Petrich, Travis C. Pratt, Cheryl Lero Jonson, and Francis T. Cullen, Custodial Sanctions and Reoffending: A Meta-Analytic Review, Crime and Justice, September 22, 2021, “skeptics argued that imprisonment may have a criminogenic effect. The skeptics were right.”
“The effects of bail and discovery reform and the dismantling of our criminal justice system has affected every New Yorker and made them less safe.” — WAMC Public Radio
New York Republican Chairman
“It’s bail reform. It’s COVID. It’s emptying out prisons.” — New York Post
Dermot Shea on the rise in gun violence in 2020
Former NYPD Commissioner
First, bail reforms in 2019 and 2020 made no changes to the handling of gun-related, and most violent, felony charges.
There is also zero evidence that shows the bail law changes have diminished public safety. For example, in response to New York City’s spike in gun violence in 2020, various officials from the New York Police Department (NYPD) claimed the reforms were to blame for the spike in gun-related crime. However, a closer analysis of NYPD’s own 2020 crime data conclusively debunked the link. While there was indeed a 46 percent spike in gun-related incidents from the same point in the year before, “just one person released under the statewide bail reform laws passed Jan. 1” had been charged with a shooting.
The story is the same on a national level. A 2021 Harvard study, which studied the impact of bail reform across all 50 states, concluded that not one state or example of bail reform contributed to a meaningful increase in crime.4
4 Jorgensen, Isabella, and Sandra Susan Smith. “The Current State of Bail Reform in the United States: Results of a Landscape Analysis of Bail Reforms Across All 50 States.” HKS Faculty Research Working Paper Series RWP21-033, December 2021. https://www.hks.harvard.edu/publications/current-state-bail-reform-united-states-results-landscape-analysis-bail-reforms-across
“Insanity. No other way to describe the resulting crime that has flowed from disastrous bail-reform law.” — New York Post
Then–New York City Commissioner Dermot Shea in an Oct. 2 New York Post story on a shoplifting case
During an Oct. 14, 2021 hearing with state legislators on the spike in gun violence in 2021, Commissioner Shea argued that bail reforms were to blame. However, during the same hearing, he was forced to backtrack his claim when asked whether any individual released without bail had committed a shooting. “When you look at who we arrest for crimes, it’s going to be small numbers,” Shea said. In addition, an analysis of the New York City’s Mayor’s Office of Criminal Justice report demonstrated that the number of defendants released without bail for gun-related crimes actually decreased after the bail law changes took effect.
“If you have someone in front of you, and this is their 5th arrest, or this is their 3rd arrest in the last several days, that person should be held,” Ortt said regarding judges having the ability to use discretion, “that person is clearly a risk to themselves or the community.” — MyTwinTiers.com
New York State Senate Minority Leader
If a person is arrested for an offense involving “harm to an identifiable person or property” while released pretrial for another such offense, that person is eligible for bail under the reformed bail laws.
That said, jail is not necessarily the best answer, even for someone with a record of recent arrests. More likely, to stabilize a person acting out in nonviolent ways—like petty theft or trespassing—it is much more effective and less expensive to provide care and services to resolve the underlying problems motivating these acts, such as help with housing, mental health, and substance use issues.
“Thompson was arrested on six charges, including felony assault, which would have allowed a judge to order him held behind bars or at least require him to make bail before he was put back on the streets … But a prosecutor with the Bronx District Attorney’s Office only asked that the convicted cop attacker be put on supervised release, meaning he could remain free…. Bronx Criminal Court Judge Audrey Stone agreed to the request—a move that dumped Thompson back on the street.”
The article then quoted a Queens police officer saying:
“Everybody’s in and out, that’s the problem. Nobody goes to jail anymore.” — New York Post
This case seems to be an example of the law working well. This individual, whose case was eligible for bail, was released under supervision based on the collective judgment of the prosecutor and judge.
The point of discretion is that sometimes even when a bail-eligible offense is charged, the judge and prosecutor may reasonably conclude that the person will be better off in the community than in jail. In this case, after release Mr. Thompson was spotted carrying breakfast home. That’s not a crime; it’s a success story.
© 2022 New Yorkers United for Justice
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