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.