Straight Talk About Bail Reform
New Yorkers will continue to suffer until state leaders dispense with their illusions about recent criminal justice legislation.
Bail reform is on the table again. But as New York State’s spring budget negotiations head into their final week, legislators appear to be arguing from ignorance and trading in misleading data analyses. Why can’t the state’s leaders talk straight about criminal justice?
Without amendments to three flawed “reform” bills relating to discovery compliance, parole, and teen crime, New Yorkers’ prospects for regaining public order and safety face tough odds. Governor Kathy Hochul is aware that crime is voters’ top priority, but she is putting all her political capital behind a single, minimal change to the 2019 bail law. Hochul has asked the state legislature to remove the mandate that, as a standard for pretrial release, judges impose only the “least restrictive” conditions that “reasonably assure” defendants’ return to court.
This step has implications only for the limited number of offenses that remained eligible for bail after passage of the 2019 law. Baked into the governor’s drafted amendment is a proposed list of factors that judges would consider that effectively adds a new category for consideration: whether a defendant has seriously harmed anyone. This new factor may be designed as a de facto metric for a defendant’s “dangerousness”—a seemingly significant change, since the 2019 law did away with workarounds that, for decades, allowed judges to consider a defendant’s danger to society in imposing pretrial detention (despite state law technically forbidding such a standard). But in fact, this isn’t the same thing as permitting judges to consider the danger that a defendant poses—that’s the amendment that New York really needs to ensure public safety.
The governor and her Albany opponents have all been leaning on the same misleading data analysis to argue over this proposal. A recent report by John Jay College’s Data Collaborative for Justice claims that bail reform has increased neither recidivism nor crime. The report’s fine print renders this conclusion meaningless, however: the analysis discounts enormous numbers of arrests that would unquestionably tilt the report’s findings in the other direction. And the report’s own data show that the real number of individuals released pretrial rose so starkly that, even if the rearrest rate had dropped, in real terms the number of re-arrestees tripled.
What would a more substantive analysis of the governor’s proposed change show? To answer that, we must ask, first, how much rising crime is driven by offenses that, after passage of the 2019 bail law, remain eligible for bail; and, second, how likely judges will be, without a greater signal of political support, to make more stringent bail-setting decisions. The fact is, it’s bail-ineligible cases—unaffected by Hochul’s proposed amendment—that are largely driving spiraling disorder. Petit larceny is up 40 percent over the past two years in New York City; misdemeanor assault rose 39 percent; and grand larceny auto grew over 97 percent. All these categories continued to rise over the past year, even as some bail-qualifying offenses declined, like homicides and shootings. So far, 2023 has seen 2,263 more misdemeanor assaults than during the same period in 2021. Under Hochul’s proposed change, those assailants still could not be jailed pretrial.
It’s not just newly minted criminals driving the surge in crimes for which bail can no longer be set, but the very same assailants, shoplifters, and carjackers who keep getting arrested with full assurance that they will be immediately released again.
According to court data from the summer after bail reform went into effect, 70 percent of New York City defendants arraigned on felonies had a prior conviction or pending case. As detailed in Jim Quinn’s Manhattan Institute report, among those who also were given non-monetary release, rearrest rates on non-bailable offenses like commercial burglary, third-degree robbery, grand larceny, and petit larceny were between 70 percent and 79 percent.
As noted, this amendment is only as meaningful as judges’ comfort in flexing their newly expanded freedom to set bail—which won’t go far in New York City. Trial judges are under political pressure from administrative judges to detain as few people as possible, motivated in part by pressure to reduce the population at Rikers Island jail to 3,300 inmates by 2027, when Rikers will be replaced by four new facilities with much less capacity. The current daily inmate count hovers around 6,000, and it is growing.
As Charles Fain Lehman has documented, back when judges had full discretion to set bail, New York City judges were still significantly less likely to jail defendants pretrial than those outside Gotham. It’s doubtful that adding some discretion back for some offenses will shift the culture enough to make downstate judges feel comfortable substantially upping their bail-setting. Jettisoning the concept of bail eligible/ineligible offense categories would carry more weight.
Finally, if the legislature does agree to scrap the “least restrictive” standard but simultaneously nixes the list of specific determining factors (for example, defendant’s activities and prior convictions), then judges still won’t be able to consider dangerousness—even for bail-eligible offenses. Worse, advocates could claim that they compromised on bail reform, blocking further, more meaningful changes.
Regardless of whether the legislature capitulates this week over bail reform, New Yorkers will continue to suffer until lawmakers have an honest discussion about criminal justice legislation.
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