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The Facts on Bail Reform in New York: How Pretrial Detention and Release Works Now

While the original law severely limited the use of money bail and jail in many lower-level cases, later revisions carved out significant exceptions.

Published: March 13, 2024

In 2019, New York ended the use of money bail and jail for most cases involving misdemeanors and lower-level felonies. The law, which was implemented in January 2020, sought to make release rather than detention the default in these cases. However, this goal has been undermined in the subsequent legislative sessions. After politicized concerns about rising crime during the Covid-19 pandemic drove lawmakers to pass three rounds of revisions to the law, it now includes several exceptions allowing judges to set bail in some cases involving lower-level offenses. Importantly, there is no evidence showing a connection between bail reform and rising crime rates. Understanding these provisions when confronting pundits and politicians who jump to the convenient scapegoat, criminal justice reform, is crucial when defending the law and fighting against calls to roll the law back further.

Bail reform is beneficial for both individuals and public safety because it addresses inequities in the criminal justice system. By reducing reliance on cash bail, reform efforts ensure that people are not detained solely because they cannot afford bail, promoting fairness and reducing unnecessary pretrial incarceration. This allows individuals to maintain employment, housing, and familial ties, reducing the likelihood of reoffending. Moreover, bail reform allows for more equitable treatment across socioeconomic backgrounds and reduces the disproportionate impact of the justice system on marginalized communities. Ultimately, by prioritizing risk assessment and alternatives to incarceration, bail reform promotes public safety by focusing resources on addressing the root causes of crime and supporting rehabilitation rather than perpetuating cycles of poverty and incarceration.

Bail eligibility by offense

New York’s bail reform law works by first separating criminal charges into qualifying and non-qualifying offenses.

Most violent crimes, such as aggravated assault, are qualifying offenses. When a defendant is charged with such a crime, judges are allowed to set bail after making an “individualized determination” that bail is “necessary to reasonably assure” that the defendant returns to court. Additionally, if a judge determines that no amount of cash bail or release conditions will ensure a defendant’s return to court, they are permitted to order the defendant directly into pretrial detention — that is, jail. The judge’s decision is not based on the predicted likelihood of the defendant committing a new criminal offense.  

On the other hand, judges generally cannot set bail or order detention in cases involving other non-qualifying offenses — such as petit larcenies (e.g., shoplifting), grand larcenies, and misdemeanor assaults. But there are several exceptions to that rule.

Case-specific exceptions

Most notably, when someone who has a pending case that involves “harm to an identifiable person or property” is released and then goes on to be arrested for a “felony or Class A misdemeanor involving harm to an identifiable person or property,” a judge may set bail or order detention on the new charge. For example, if someone shoplifts (which is not bail eligible), is released, and then shoplifts again, the person becomes bail eligible on the new case, based on the fact that both petit larceny charges involve “harm” to “property.” This provision was added in 2020 to address concerns about people committing repeat offenses while released.

It has not always been clear how broadly this rule might be interpreted. But in 2022, the state legislature clarified that theft and property damage both meet the definition of “harm to an identifiable person or property,” unless the theft is “negligible” and not “in furtherance of other criminal activity.” Thus, harm need not entail the destruction of property or physical violence to trigger this provision.  

Some questions remain. One concerns whether felony rearrests must involve “harm to an identifiable person or property” to be bail eligible or whether that limitation applies only to misdemeanors. At least two lower courts have opted for a broad interpretation, concluding that someone who is released after being arraigned on a felony or Class A misdemeanor becomes bail eligible if they are arrested for any felony while released, regardless of harm caused. But that interpretation is not without its faults — arguably, it renders part of the bail statute duplicative — and New York’s high court has yet to weigh in.

Separately, other options remain for more serious cases. Judges can set bail on defendants charged with any felony, even if the charge is not bail eligible, if the defendant is classified as a “persistent felony offender” — meaning that they served prison time for felonies on two separate occasions, no matter how much time has passed between the previous cases and the new case. Bail may also be set if someone is arrested on suspicion of a new criminal offense while on parole. For example, stealing $1,500 worth of property would not ordinarily constitute a bail-eligible offense. But if a person is arrested for stealing $1,500 worth of property and is either a “persistent felony offender” or on parole, a judge is able to set bail.

Release options

When cash bail cannot be set, there are still non-monetary conditions that can be imposed. These include electronic monitoring, supervised release, and a wide variety of conditions a judge can set on a defendant prior to release.

Supervised release tends to be the most common of these options. It entails release to the care of a local nonprofit, such as the New York City Criminal Justice Agency or the Center for Alternative Sentencing and Employment Services. The agencies provide reminders, check-ins, and referrals to programs that offer everything from job training to drug treatment and mental health counseling. Supervision is intended to ensure that people come to court on their scheduled court dates and to help them avoid rearrest.

Supervised release predates the 2020 bail reform law in New York, and since the citywide expansion of the supervised release program in 2016, over 50,000 people have been diverted from jail detention. After bail reform was implemented, people were four times more likely to be released to the supervised release program compared to cash bail. Data from the New York City Criminal Justice Agency shows that in December 2023, almost 50,000 people were in the community awaiting resolution of a criminal case, and 95.7 percent of them were not arrested and prosecuted for any new offense.

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For all the changes that have been made to the 2020 bail reform law since it went into effect, much of the law remains the same. Money bail is still not permitted for most misdemeanors and nonviolent felonies, though additional carveouts have been made for people who have been rearrested after being released. It is imperative that further investment is made into the infrastructure that has made bail reform successful thus far. For example, the city budget included increased funding for supervised release. Understanding how bail is operating in New York and highlighting the success of the alternatives to money bail are critical to meeting that end.