Bail Reform in the Empire State: A Look at the History & Future of Cash Bail Legislation in New York

This blog is part of a series on the implementation, effects, and challenges of bail reform in New York State. Check out “Bail Reform in New York” for an overview of bail & other criminal legal reform legislation in the state as well as other resources & materials.

The presumption of innocence is one of the foundations of the American legal system; yet, on any given day, hundreds of thousands of people sit in jails pretrial simply because they cannot afford to post bail. The inability to pay bail is a barrier to freedom, creating a system where two people accused of the same crime can have different outcomes simply because one is able to buy their freedom while the other cannot afford to.

The Function & the Reality of Bail

In New York, bail was used for decades to ensure that individuals returned to court; by putting up money—only returned if the individual appeared in court—bail was used to incentivize people deemed a “flight risk.” Functionally, bail is used to hold those who have yet to be convicted of any crime and, most often, is set without consideration of an individual’s actual ability to pay, putting it out of reach for most New Yorkers and effectively making it a jail sentence prior to a trial. In 2019, in New York City, individuals were unable to post bail at arraignment 85 percent of the time. Time spent in jail is associated with numerous negative consequences, including increased likelihood of a person pleading guilty, despite whether or not they did, in fact, commit the offense—research has shown that individuals may plead guilty because it is more certain they will get out of jail quicker. There are also increased chances of conviction, harsher sentencing, and increased recidivism. Furthermore, even short stays in jail can result in loss of employment, housing, and parental rights.

The Demand for Reform Grows

Given these harms, which disproportionately affect low-income communities of color, support for pretrial reform to safely reduce jail use has grown in recent years. Changes to bail, in particular, have advanced as an effective mechanism to limit unnecessary detention and its collateral consequences. Support for bail reform has grown across the country, with many jurisdictions—in nearby states such as New Jersey and most recently in Illinois—enacting legislation to end or limit the use of cash bail. Research has shown that these types of changes do not negatively impact public safety. Indeed, in New Jersey, where the number of people held in jail pretrial decreased 50 percent from 2015 to 2018, violent crimes simultaneously decreased by 16 percent and there was a negligible difference in the number of people arrested while out on pretrial release. Similarly, researchers from Cook County, Illinois, found that a local bail reform policy increased the number of people released pretrial but did not cause any significant change in new criminal activity, violent or otherwise, and was not associated with any change in the amount of crime in Chicago.

Bail Reform in New York

In New York, advocates and defense attorneys have been pushing for years to change the bail statute. Advocates argued that imposing bail was akin to criminalizing poverty and further entrenched racial disparities. The push intensified following the death of Kalief Browder, who died by suicide after spending three years on Rikers for a charge that was eventually dropped—over $3,000 bail his family couldn’t pay. In April 2019, legislation overhauling multiple areas of the pretrial system—including significant changes to bail, pretrial, and evidence sharing processes—passed the State legislature. The legislation eliminated bail for most misdemeanors and non-violent felonies and required judges to use the least restrictive conditions to ensure individuals return to court, among other changes meant to expedite case processing and level the playing field for people in the system. 

Swift backlash immediately followed. Media outlets in New York ran articles on why bail reform was a dangerous idea, including saturated coverage of a series of highly publicized hate crimes following implementation of bail reform in January 2020. This led to calls for amending the legislation, ultimately culminating in rollbacks passed only three months after the law went into effect.

Fueled, in large part, by this flood of media attention, bail reform has become a scapegoat for the recent rise in violent crime; however, the rush to point fingers is not based in fact. Prior to the introduction of bail reform, New York City was already on a steady path to reducing its jail population with no evidenced impact on crime rates. In fact, crime rates were at their lowest in 2019. Bail reform further decreased jail populations and early data suggests that the overwhelming majority of those released under the new policy did not go on to commit subsequent acts of violence. According to NY Office of Court Administration data, in 2020, only 2 percent of people released pretrial were rearrested for a violent felony. Though the very real concerns about these upticks in violence (which are still significantly lower than what the state experienced in the 1990s) should not be downplayed, it is also important not to blame one policy that took effect during a period of unrelated heightened turmoil and unrest—with COVID and issues of racial justice, in particular. Furthermore, New York was not the only jurisdiction to experience a rise in violent crime; in fact, many cities experienced similar increases regardless of whether or not similar bail policies were in place. To date, it has been extremely difficult to tease apart the specific effects of bail reform, though researchers have started to unpack the data now that some of the COVID effect have waned.

Furthermore, New York was not the only jurisdiction to experience a rise in violent crime; in fact, many cities experienced similar increases regardless of whether or not similar bail policies were in place.

Creating a Safer New York Through Facts, Not Fear

Recognizing these other factors, the rise in violence will almost certainly not be solved by repealing or significantly changing bail legislation. Further, not acknowledging the confluence of factors that play a role in crime trends can erode at the significant progress that has been made to reduce reliance on confinement, bolster community-based supports, and ensure equity for all New Yorkers. Public discourse should instead focus on ways to more efficiently and accurately identify the drivers of violent crime, and to rely on data to inform holistic solutions that do not erase all the hard-won progress New York has made. The state is at a pivotal moment. With new leadership and renewed calls for amendments to bail reform, it is critical that complete and accurate information is available to the public.

During a recent trip to the State legislature in Albany, New York City Mayor Eric Adams suggested bail reform was to blame for the recent increase in shootings and certain violent crimes, advocating for increased judicial discretion in bail-setting. Governor Kathy Hochul echoed this call last week, despite pushing back earlier in the year. So far, the democratic-majority legislature has resisted changes to the law, but nothing is set in stone. It is critically important that New Yorkers take this opportunity to collectively address the very real concerns of the state’s diverse and unique communities—not through calls to repeal bail reform, but through continued data-driven and community-engaged efforts that seek to build trust and promote safety.

ISLG, with funding from Arnold Ventures, is working to better understand implementation of NY’s bail legislation. In addition to ISLG’s work, AV is also supporting research at other organizations that seek to better understand the impacts of pretrial reform across the state.  

Photo by Aidan Dominguez on Unsplash.

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