The Assault on New York’s Bail Reform

For those who fought to get New York’s bail reform law passed in April 2019, a simple idea was paramount: people accused of a crime shouldn’t be locked up just because they’re poor. The law eliminated pretrial detention and money bail for most misdemeanors and nonviolent felonies in an attempt to create a fairer criminal justice system, since those who can’t pay bail lose jobs, housing, and sometimes custody of kids.

Money bail is a refundable deposit that a judge can require someone accused of a crime to pay in order to be released. It’s meant to incentivize the accused to show up in court. But studies indicate that it mostly serves to lock up poor people who can’t afford to pay. A 2016 national study by the pro-reform Prison Policy Initiative found that those who were in jail because they couldn’t pay bail had a median annual income of about $15,000. In New York City, in 2016, more than half those behind bars were there because they couldn’t afford bail—not because they’d been found guilty. That isn’t just a big-city problem: In March of 2019, a month before the state legislature passed bail reform, 125 of the 243 people in jail in Ulster County were being held before any trial.

A story from one local public defender illustrates the difference reform has made. Laurie Dick is a Legal Aid Society defense attorney who lives in Beacon and practices in Brooklyn. In the summer of 2020, one of her clients—we’ll call him “Jeff” to protect his privacy—was getting his life together after being unhoused. He’d moved out of a shelter into subsidized independent housing and had gotten a new job at Shake Shack. One afternoon, he was on his way home from work when he got off the train in Brooklyn and was stopped by police. They told Jeff, who’s Black, that he fit the description of a person who’d allegedly committed a robbery a few blocks away: snatching a chain from someone.

Jeff was adamant that he was innocent—he even offered to have officers check his bags, says Dick. The police brought the victim, who was white, to tell them whether Jeff was the perpetrator. The victim said yes, the identification happening through a car window with Jeff surrounded by cops, Dick says.

When Dick first met Jeff at the courthouse, his first question was whether she could call his assistant manager to explain why he’d be late for his next shift. He also gave her the details of his movements on the day of the alleged crime. Dick subpoenaed videos from a drugstore he’d been to and from the subway station. Both proved he couldn’t have been at the scene of the robbery. Still, it wasn’t until another several weeks, after prosecutors tested the DNA from a discarded sweatshirt found near the scene, that the charges were dismissed.

In all, the case took four months to resolve. New York’s new bail law required that Jeff be released before trial. He had little money and no family to help out, so if the judge had set bail, Jeff wouldn’t have been able to pay it. And had he been locked up, he’d likely have lost his job, and possibly his housing.

Instead, today he’s a Shake Shack manager after getting a promotion. “This didn’t derail him,” says Dick. “And it very well could have.”

Anti-Reform Forces Gain Ground

That’s not the story coming from the many politicians, prosecutors, and law enforcement groups who have declared that the state’s revised bail law is undermining public safety. This isn’t borne out by the data: violent crimes in New York rose 1 percent from 2019 to 2020, the latest year of state data. And while certain categories have spiked, including murders by 47 percent and assaults involving a weapon by 5 percent, that mirrors trends nationally. States like Montana and Kentucky, untouched by bail reform, saw homicide increases topping 60 percent.

Credit: FBI Crime Data Explorer

But in two district attorney races in Long Island that turned into referendums on bail reform last November, Democrats lost. (Only one of the two actually voted for bail reform, but it was Democrats who passed the April 2019 law.) And newly sworn-in New York City Mayor Eric Adams said during his campaign that judges should be setting bail more often. Before and after his election, Adams has said Democrats should revisit the bail law.

Meanwhile, police and prosecutors continue serving as sources for news stories blaming bail reform for a rise in violence. A December New York Post story headlined “The worst NYC crimes committed in 2021 are thanks to shaky bail reform law” quoted multiple law enforcement sources, most of them unnamed. A Yonkers Times story in November about a double murder relied on quotes from police to blame bail reform for the crime, committed by a man who’d been released after an earlier arson charge. (It’s not clear he would have been kept behind bars on the arson charge even under the old bail system.) And in an op-ed last summer, also in the Post, Albany County District Attorney David Soares, a Democrat who won in 2004 on a promise of criminal justice reform, said bail reform was responsible for a surge in gun crime around the state.

Soares appears to have swayed a local media personality, as well. In a December 23 WAMC interview, he said that because of bail reform, “what you see happening right now in every community in the state of New York is an increase in crimes, shootings,” an assertion host Alan Chartock, who’s also the station’s president and CEO, didn’t challenge. (Soares didn’t respond to multiple requests from The River for an interview.)

Asked about that conversation the next day, Chartock said, “There are people who are very dangerous…And so what you need to do [Soares] says, and I think he’s right, is to give the judges the power to recognize that dangerousness and in some cases to say, ‘no, you’re not getting out.’”

At Stake: The Future of Bail Reform Nationally

What doesn’t make headlines, say advocates, are homes and neighborhoods that are safer because people are free to go to work and take care of their families. But proponents are at a disadvantage in telling those stories: people like Jeff are reluctant to go public for fear it will hurt their job and housing prospects. And if their cases are pending and their liberty still in jeopardy, they’re particularly reluctant to talk, says Dick.

The stakes in this debate are huge: New York’s bail changes might be the most far reaching yet, and the bail bond industry and opponents in law enforcement are citing it as a failure in other states where reform legislation is being considered. In November, for example, the American Bail Coalition, a trade association for the bail bond companies that stand to lose in reform laws, posted an article on its site criticizing reform legislation in Ohio because it would replicate “New York’s failed bail experiment.”

At stake, too, are the lives of less well-off New Yorkers, say defense attorneys. Those include people like Jeff who are innocent. But it also includes those who do commit a nonviolent crime and get released. While they’re free, they get the chance to show that they can stay on the right track, which affects their sentencing.

“The people I represent are poor people,” says Joel Proyect, a criminal defense and family law attorney and former prosecutor who practices in six mid-Hudson counties. They sometimes struggle with employment and unstable family lives, he says. But if they’re charged and released, “they can affect the outcome of their cases by getting into drug treatment, if there’s a drug issue or an alcohol issue. They can clean themselves up. They can lead good lives.” If they do, it favorably informs a judge’s sentence, as it should, he says.

A recent client of Stephen Riebling, a criminal defense and family law attorney in Westchester County, was dealing with an addiction and was charged with a low-level drug offense. Under the old system, he’d have been required to post bail, which he couldn’t have paid because he’d lost his job given his addiction struggles. Instead, he got into a treatment program, where he made progress getting his life together, Riebling says. All that led the judge to issue what Riebling says was a fairer sentence that didn’t involve jail time.

What the Data Show

Conversely, several studies suggest that being held behind bars actually increases the chance of a future crime. A 2017 study in the Journal of Law and Economics looked at nearly a million cases in New York City criminal courts between 2009 and 2013: those held in jail before trial were between 8 and 12 percent more likely to be rearrested within two years than those who weren’t.

State pretrial release data also don’t support the idea that bail reform is driving up violent crime. In Soares’s own Albany County, 1.93 percent of those released after an arrest were rearrested for a violent felony before trial, according to an analysis by The River of data covering January 2020 to June 2021, the latest available. In Ulster and Westchester counties, the figures were 1.67 and 2.76 percent, respectively. 

There’s another way to assess bail reform’s effects. The new law still lets judges set bail for someone arrested on a nonviolent crime, if the judge thinks there’s a credible risk they won’t show up in court. In that small number of cases, the accused person can pay bail to be released, just as under the old system.

County-level data show that in those situations, an arrest for a violent felony before trial is nearly as likely as when people are released because of bail reform. In Albany County, just one of the 63 people who paid bail was rearrested for a violent felony before trial—a rate of 1.59 percent, nearly the same as the rate for those released without bail. In Westchester, it was three of the 120 people who paid, or 2.5 percent, which also nearly matches the proportion released without bail. (In Ulster County the numbers are too small for a comparison: bail was set in only three cases, none involving a rearrest.)

And the data indicate bail reform may be achieving what has long been the only permissible use of bail in New York: ensuring that those charged show up to court. Data from the three counties show that between 85 and 88 percent of those released after arrest showed up for trial.

Certain Unalienable Rights 

Time will tell whether New York’s Democrats buckle under the pressure from law enforcement and cop-friendly media. Criminal justice reform is easier to achieve when crime is falling, harder to defend when it’s rising. Asked about bail reform, Westchester County District Attorney Miriam Rocha, a Democrat, responded by email, in part: “I supported bail reform in New York because it was clear that the system was unfairly penalizing people—disproportionately people of color—charged with crimes, regardless of how serious, who did not have money to pay their way out of jail.”

But she also appears to be open to changes: “I am committed to working with other district attorneys, law enforcement, members of the community and criminal justice reform advocates to propose practical, effective changes to the law that will further the goals of a fairer criminal justice system while keeping victims and communities as safe as possible.”

Ulster and Sullivan county lead prosecutors David Clegg and Meagan Galligan, who both ran as Democrats, didn’t respond to requests for comment from The River about bail reform, nor did State Senator Michelle Hinchey.

Clegg, in a January 21 video appearance with the Mid-Hudson chapter of the League of Women Voters, said he’d been a “big proponent” of the new law. But he also said that after it passed, he and others advocated a partial rollback that allowed bail to be set in more categories of offenses—which the state legislature enacted in April 2020. Clegg was silent on whether he’d like to see further rollbacks.

But those who represent mostly poor defendants are clear about what they think the law has done. “This is truly the spirit of the Constitution,” says Gary Abramson, chief attorney at the Legal Aid Society of Orange County. “I believe it’s what the Constitution intended when it talked about the right to bail. Pretrial release for those charged with a nonviolent crime is a benefit to everyone who believes in freedom.”