Perspective: It’s Time to Take a Clearer Look at Bail Reform

This piece was published in our Perspectives section, in partnership with The Appeal.

In early March, New York City Mayor Eric Adams lashed out, once again, at bail reform.  

“Failing criminal justice laws,” he said in a statement, had allowed a person “with a history of violence who poses a clear threat to public safety to just walk out of court.”

He was referring to a man who had been living in a homeless shelter and was accused of smearing feces on someone in a Bronx subway station. The man had been released after an arraignment weeks earlier without being required to post bail, since he’d been arrested on misdemeanor charges.

“We can’t allow this horrific situation to be the status quo,” Adams continued. The laws must be changed to “keep people who are clearly a danger to others off the street.”

His statement was part of the campaign he began even before taking office to roll back New York State’s landmark 2019 bail reform law, which made a number of lower-level charges ineligible for bail.

His efforts met partial success in the state budget New York passed last month. Governor Kathy Hochul had insisted that the budget include changes to the state’s law. Lawmakers didn’t go as far as she wanted, but they did walk the law back further after having rolled portions of it back in early 2020, which will only further swell jail populations that have recently been increasing.

But in the raucous debate over bail, the actual facts have fallen out of most New Yorkers’ sight. It’s high time to take a more clear-eyed look at the history and impact of bail reform.

What Adams failed to mention is that New York’s bail law is not—and never has been, even before bail reform—about preventing crime. Judges have never been allowed to set bail based on whether someone might commit more crimes. As it used to be throughout the country, bail in New York has only been meant to ensure that people return to court for their later hearings and trials. 

Bail reform has in no way failed. In fact, despite concerted attacks from conservative politicians and media, it’s mostly worked the way it was supposed to. The 2019 law was intended as a way to reduce jail populations and ensure people weren’t incarcerated on low-level charges because they couldn’t afford to post bail. And in the years since, it has in fact reduced the state’s jail population while still ensuring that people return to court.

“No one is arguing bail reform is ineffective because people are absconding and we can’t prosecute them,” said Jullian Harris-Calvin, director of the Greater Justice New York program at the Vera Institute of Justice. “People are returning to court.”

How Bail Works

Judges have the option to set bail during arraignment hearings, which are the initial court hearings that occur shortly after someone is arrested for allegedly committing a crime. If the judge is concerned that the defendant will not attend their next court hearing, they can require the defendant to post cash bail—money that defendants will get back only if they return to court, acting as a kind of collateral. (Judges can also remand defendants and send them to jail without the possibility of bail, though this is relatively rare.)

But prosecutors and judges have abused the cash bail system for years, using it as a way to incarcerate people they deem dangerous. Before bail reform, judges routinely set high cash bail amounts even for nonviolent and low-level offenses, forcing nearly 24,000 people in early 2018 to sit in jail simply because they were too poor to buy their way home. 

In 2010, Kalief Browder was 16 years old when he was arrested in the Bronx for allegedly stealing a backpack. The judge set his bail at $3,000. His family couldn’t afford to pay it, and Browder spent three years incarcerated at Rikers Island awaiting trial, never convicted and presumed innocent, two of them in solitary confinement. In 2013, the charges were dropped and he was released. About two years later, he died by suicide.

Browder’s case later inspired reforms to New York’s bail law, and in 2019 the legislature passed a law barring judges from setting cash bail for most misdemeanors and nonviolent felonies. If judges do set bail, the law requires them to consider a defendant’s financial circumstances and set an amount that won’t create “undue hardship.” 

In late 2019, just ahead of the law going into effect in January 2020, judges started implementing the rules ahead of time. New York’s pretrial jail population—people awaiting trial and not yet found guilty—began to fall. That population stood at 11,906 in November 2019, but had dropped to 8,519 by January 2020, when the law officially took effect. The population continued to fall and reached a low of 7,242 people by that April.

How Bail Reform Is Working

Even though fewer people are sitting in jail before their trials, they’re still returning to court at the same rates as before. Most people who are released without having to post bail in New York City are mandated to check in periodically with one of the city’s three supervised release providers. Those providers report that in all New York City counties except Queens (for which they don’t have data), 91 percent of clients have returned to court in the 14 months since bail reform went into effect, higher than the 87 percent cumulative rate from March 2016 to December 2020 for all boroughs.

The rates are similar throughout the entire state. 

According to an analysis by the Vera Institute, between January 2020 and June 2021, 91 percent of people who were released on their own recognizance—in other words, without conditions like bail or supervision—had no bench warrant issued against them, which indicates they attended all their scheduled court dates. The same was true of 84 percent of people under pretrial supervision. The rates are indistinguishable from those of people who had to post bail, 89 percent of whom did not have bench warrants issued against them.

“Bail reform in New York has been a huge success,” said Scott Levy, managing director of policy at the Bronx Defenders. “Tens of thousands of people have been able to fight their cases from home, go to work, take care of their kids, provide for their families, continue with their educations, while meeting their obligations to the court.” 

In New York City alone, according to data from the city comptroller, bail was set in 14,545 cases in 2021, a huge drop from 24,657 in 2019. 

But ever since New York’s bail reforms went into effect in January 2020, they have been the subject of intense criticism by some lawmakers, prosecutors, and police officers. 

Politicians and media outlets have seized on incidents in which a person allegedly committed a crime after being arraigned and released for a different crime. These attacks on the law have prompted state legislators to water down the bail reform law during both the 2020 and the 2022 budget negotiations.

In April 2020, lawmakers rolled bail reform back by making more than a dozen charges eligible for bail that had been excluded under the original law. Many judges have also become resistant to following the law and have started shoehorning cases into the bail-eligible exceptions, and many are failing to ask about defendants’ ability to pay bail, according to court observations conducted by the Vera Institute. 

Since the 2020 changes went into effect, the number of pretrial detainees has slowly crept back up. At the end of 2020, the pretrial jail population stood at 9,731—more than a third higher than its record low in April 2020, though still nearly 40 percent lower than its 2018 peak.

Compromises and Carve-Outs

This year’s budget rolls the bail reform law back even further. Two gun charges—criminal possession of a weapon in the third degree and criminal sale of a firearm to a minor—will now be bail eligible. Criminal possession of a firearm—a nonviolent charge involving an unloaded gun—will be subject to bail if allegedly committed after someone was released before their arraignment or trial without bail. 

The 2019 reform law made most nonviolent felonies ineligible for bail while allowing judges to set bail for violent ones. According to Yung-Mi Lee, legal director of the criminal defense practice at Brooklyn Defender Services, criminal possession of a firearm is a nonviolent felony that entails an unloaded gun, with no bullets nearby, that no one was intending to use to cause harm. It would become a violent felony, and therefore subject to bail under the original 2019 reforms, if the gun was loaded, ammunition was in the owner’s residence, the serial number was defaced, the owner had a prior felony conviction, or the owner intended to use it unlawfully to scare or hurt someone. 

The original bail reform law also exempted theft—the same crime that Kalief Browder was charged with—from bail, along with most misdemeanors. 

Theft is a nonviolent charge—if a gun or weapon was involved, it would become robbery. Instead, theft entails “someone going to CVS and taking a bottle of shampoo,” Lee explained. “You’re homeless and living on the streets and you go to the CVS and you steal a sandwich in the refrigerator aisle.”

Now, theft will be eligible for bail and pre-arraignment detention in certain circumstances. A judge may set cash bail for someone accused of theft if the alleged theft occurred while the person was released on a prior charge or given a desk appearance ticket, which is similar to a summons. The judge must also find that the alleged theft was “in furtherance of other criminal activity” and was not “negligible.” 

Neither of those terms—“negligible” or “in furtherance of other criminal activity”—has yet been defined. 

“It’s obviously going to be subjected to wide-ranging interpretation,” Lee said, by both prosecutors and judges. One judge, for example, might deem stealing $50 worth of items negligible, while another wouldn’t agree. “There’s probably going to be discrepancy across the state depending on who the judge is.” 

Harris-Calvin pointed out that while the legislature may be trying to carve out crimes resulting from poverty, that may not be the actual impact. 

“Judges didn’t have to hold people who stole sandwiches or laundry detergent before, and they still would,” she noted. “I don’t know how useful that’s going to be in practice, especially when it’s completely undefined.”

Finally, when deciding to set bail, judges will be required to weigh whether a defendant has been previously charged with causing “serious harm” and whether they have a history of using or possessing a gun. It’s yet to be seen what judges decide constitutes serious harm, which is not defined in the budget—it could include physical harm, economic harm, and/or property damage. And given that Black people are disproportionately likely to be arrested and incarcerated, taking past charges into account risks baking systemic racism into the process.

These changes didn’t go as far as Governor Hochul had wanted. But they still threaten to increase the pretrial jail population and further erode the progress that had been made under the original bail reform law. The Data Collaborative for Justice estimates that they will make about 500 more New York City cases eligible for bail each year, meaning hundreds or possibly thousands more statewide. It will be up to judges to decide whether to set bail in those cases, but their track record shows they are likely to do so. “When given the option, they are willing to put people in jail over low-level crimes,” Harris-Calvin said.

The end result of these changes will be more New Yorkers locked up before their trials—not because people are failing to show back up to court, but because powerful politicians are whipping up fear and papering over the facts.