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Analysis

New York’s Upcoming Bail Reform Changes Explained

The state’s new bail reform law should significantly reduce pretrial incarceration levels, but some questions remain.

December 10, 2019

A post explain­ing further revi­sions to New York’s bail law that go into effect on July 1 is here.

A new bail law goes into effect on Janu­ary 1 in New York. It will elim­in­ate pretrial deten­tion and cash bail as an option in an estim­ated 90 percent of arrests. For the remain­ing cases, judges will main­tain the option of setting cash bail.

As the effect­ive date nears, some have raised concerns, lead­ing to the intro­duc­tion of legis­la­tion to roll back the bail reform pack­age or put a morator­ium on imple­ment­a­tion. Here are the facts about what the law does and does­n’t do.

The law’s provi­sions

For most misde­mean­ors and nonvi­ol­ent felon­ies, cash bail is no longer permit­ted. Judges must release indi­vidu­als charged with those crimes with no cash bail, either on their own recog­niz­ance or with release condi­tions designed to ensure that the indi­vidual returns to court, such as pretrial super­vi­sion and text message remind­ers for court dates.

For those charged with the most seri­ous crimes — includ­ing almost all viol­ent felon­ies and certain nonvi­ol­ent felon­ies, such as sex offenses and witness tamper­ing — very little has changed in New York. In those cases, judges will retain the option to set cash bail.

In addi­tion, the law has not changed what judges are permit­ted to consider in setting bail. Unlike almost all other states, judges in New York are not permit­ted to detain people due to concerns that they will pose a danger to the community if released. This part of the legis­la­tion is consist­ent with long­stand­ing law in New York, which has prohib­ited the consid­er­a­tion of danger­ous­ness in setting bail since 1971 in order to ensure that those charged with crimes are afforded the presump­tion of inno­cence.

Despite the estim­ate that approx­im­ately 90 percent of arrests will result in release, the law did not provide fund­ing for the imple­ment­a­tion of bail reforms. This could prove prob­lem­atic as many more people are expec­ted to be under pretrial super­vi­sion, which will require train­ing on the new rules as well as resources such as pretrial officers and tech­no­logy to provide text remind­ers for court dates.

Many legis­lat­ors and elec­ted district attor­neys, includ­ing some of those who support the total elim­in­a­tion of cash bail due to its dispar­ate impact on communit­ies of color and the poorest New York­ers, have criti­cized the new law. But given that repor­ted crime remains near historic lows in New York notwith­stand­ing the current bail system, which permits anybody who can afford to pay bail an oppor­tun­ity to be released, there’s currently no evid­ence from which to conclude that the bail reforms will cause an increase in crime.

Compar­is­ons with New Jersey

Design­ing and imple­ment­ing a fair pretrial system requires care­ful thought and analysis, as well as a signi­fic­ant commit­ment of resources. And given that New York has yet to elim­in­ate cash bail, there is more work ahead. The approach taken by New Jersey, which over­hauled its bail system in 2017, offers an import­ant example.

In 2013, a commit­tee of legis­lat­ors and those who work in the crim­inal justice system began examin­ing the state’s bail system. The commis­sion found that New Jersey’s bail system was seri­ously flawed, as is the case in many juris­dic­tions across the coun­try. Defend­ants who could not afford to post bail were held in jail, even when they were charged with minor offenses and did not pose a flight risk or danger to the community.

At the same time, more danger­ous defend­ants who could pay bail were released — and, because the New Jersey Consti­tu­tion required bail to be set in every case, judges had no author­ity to detain even danger­ous, viol­ent indi­vidu­als. Ulti­mately, the commit­tee recom­men­ded a move away from a cash bail system. These reforms required an amend­ment to the state consti­tu­tion, which New Jersey voters over­whelm­ingly approved.

The state’s system is now based on an indi­vidu­al­ized eval­u­ation of whether a defend­ant is a flight risk or presents a danger of commit­ting a crime while on release. To determ­ine which release condi­tions are appro­pri­ate for each indi­vidual, police and judges under­take a stand­ard­ized public safety assess­ment, which seeks to provide an object­ive and uniform meas­ure of those two factors in each case.

A recent analysis found that since the bail and other reforms, New Jersey has enjoyed a signi­fic­ant reduc­tion in crime rates and over­all arrests, as well as a much lower rate of pretrial deten­tion. These are import­ant goals for any bail reform pack­age.

What does New Jersey’s success story mean for New York’s bail reform pack­age?

It’s hard to say. New York’s new bail law resembles New Jersey’s in that pretrial release without cash bail is expec­ted for the vast major­ity of cases. But the New York law also differs from its neigh­bor’s in other key ways. As noted above, it treats categor­ies of crimes differ­ently and does not permit a consid­er­a­tion of danger­ous­ness.

Never­the­less, given signi­fic­ant reduc­tions in the number of people expec­ted to be incar­cer­ated pretrial, the law has the power to be trans­form­at­ive. Only time will tell whether New York will see differ­ent results from those seen next door in New Jersey — includ­ing contin­ued low crime rates and nearly unchanged rates of people return­ing to court. Should that prove true, New York will be well situ­ated to make addi­tional needed reforms to its bail and crim­inal justice systems.