New York is the epicenter of America’s Covid-19 crisis, but it’s also the focal point of the national debate about reducing jail populations through bail reform. The pandemic has renewed calls to cut incarceration further, which may reinvigorate the bail-reform movement in the future. But it’s important to remember that this public-health crisis is temporary, while the risks of bad bail reform will be lasting.
Last April, New York lawmakers passed legislation limiting the scope of criminal charges for which defendants could be required to post bail or be remanded to pretrial detention. Albany enacted these restrictions while maintaining an outmoded prohibition on judicial consideration of “dangerousness” in pretrial release decisions—including the imposition of non-monetary release conditions, such as electronic monitoring. Uniquely among the states, New York cannot consider public safety in any aspect of pretrial release.
The reforms resulted in a sharp rise in the number of defendants avoiding pretrial detention altogether. This led, in turn, to prominently reported incidents in which released defendants were rearrested for new offenses—sometimes for the same crime they were initially charged with committing. These incidents were accompanied by a rise in New York City crime through February, which set the public on edge and prompted calls to scale back the previous year’s reform.
NYPD data showed that public anxiety wasn’t misplaced. In the first two months after bail reform took effect—January and February of this year—483 people arrested for non-bail-eligible felonies in the city were rearrested (some more than once) for 846 new crimes. Thirty-five percent of those crimes were major felonies, including murder (1), robbery (99), felony assault (27), burglary (79), grand larceny, and grand larceny-auto (93).
Public opinion about the Empire State’s bail reform took a nosedive just weeks after it went into effect. When the reforms were passed last spring, 55 percent of respondents to a Siena Poll thought that the reform would be good for the state. By mid-February, that number was down to just 33 percent, with 59 percent of respondents registering their opposition.
State leaders, including Governor Andrew Cuomo and Senate Majority Leader Andrea Stewart-Cousins, committed themselves to addressing public concerns in this year’s budget, finalized on April 3. Though the final bill included changes to last year’s reform, the revisions are modest and leave many of the law’s holes unplugged. The most notable “adjustment” is a small-scale expansion of the list of “qualifying offenses” that were carved out in the 2019 reform as bail-eligible. The revised statute, however, maintains the misguided prohibition on judicial considerations of public-safety risk when deciding whether and under what conditions to release defendants pretrial. And the updated statute still contains provisions that make bail more difficult to impose and less likely to result in a jail admission—even in qualifying cases—by requiring judges to choose the least-restrictive means of securing a defendant’s return to court, and to explain their decision on the record.
Almost all the crimes designated as “qualifying offenses” in 2019 involve violence, the threat of violence, or sexual exploitation. This also applies to offenses added in 2020—a tacit admission that dangerousness matters. So why not give judges the discretion to detain pretrial defendants who pose a potential danger to the public? Critics of pretrial detention often cite “presumption of innocence,” but the Supreme Court has ruled on multiple occasions that pretrial detention on public-safety grounds is constitutionally permissible.
The current law seems built on a presumption that the crimes for which a defendant is charged are a reliable indicator of the risk that he or she poses to the public during the pretrial period. They’re not. According to a study by the New York City Criminal Justice Agency, “the likelihood of (a failure to appear) and/or re-arrest for a violent offense was lower among defendants initially arrested for felony-level violent and property offenses” than it was “among defendants initially arrested for all types of misdemeanor or lesser offenses.”
A fairer and more accurate way to assess a given defendant’s risk is through a validated algorithmic risk assessment tool (RAT), which calculates risk based on factors like criminal history and age. A recent study by the Center for Court Innovation illustrated the predictive accuracy of such a tool—even across racial groups, a crucial criterion, given the opposition of reformers who claim that racial bias is built into the algorithms. This criticism ignores that New York has long used an algorithmic RAT to assess risk of flight. Also, in jurisdictions that recently enacted bail reforms (such as New Jersey), the use of RATs hasn’t materially changed the racial composition of the jail population.
New York’s heavy reliance on cash bail was often inefficient and sometimes inequitable. New York tried to balance equity and safety in 2019, but the effort proved lopsided; it required a fix just months after taking effect. The new adjustments improve matters, but an important imbalance remains—one with implications for public order.