NEW YORK – Two years ago, New York joined a growing number of states scaling back the use of cash bail for criminal defendants. Ever since then, critics of the reforms have warned it would lead to dangerous people being released to commit more crimes.
A new report by New York City's fiscal watchdog says that predicted wave of recidivism hasn't happened.
While far more people are being diverted from jail while awaiting trial, the percentage who get re-arrested for new offenses remained virtually unchanged after the reforms took effect, according to the analysis by City Comptroller Brad Lander. In most months, it is still right around 4%.
Both before and after the reforms, only a small fraction of the people released while awaiting trial — less than 1% — were re-arrested for violent felonies.
The report's release comes as some New York officials have considered rolling back bail reforms, which were enacted as part of an effort to address the inequity of poor people being jailed because they couldn't afford bail, while wealthier people accused of the same crimes went free.
“We think it’s important that policy making follows facts rather than fear,” Lander, a Democrat, told The Associated Press. “We wanted to take a look at the data on bail trends and understand what is really happening. The conversation on bail reform has gotten divorced from that data.”
New York was among the first states to eliminate bail and detention for most nonviolent crimes, following a half-dozen states, including New Jersey and Nebraska, that passed laws establishing a presumption of release and nonmonetary bail.
Police leaders, law enforcement unions and some politicians began assailing New York's reforms even before they took effect in January 2020.
New York eliminated bail for many nonviolent felonies and required appearance tickets instead of arrests for low-level offenses.
The changes kicked in months before the coronavirus pandemic led to widespread shutdowns, which were followed in some places by an increase in shootings. Lately, a number of headline-grabbing violent crimes in New York City have given momentum to bail reform critics.
In recent days, Gov. Kathy Hochul’s administration has circulated a draft plan that would make more crimes eligible for detention and give judges broader latitude in setting bail.
The plan, first reported last week by the New York Post, calls for allowing judges to consider a defendant’s criminal history and use of firearms when setting bail, making certain gun crimes and attacks on subway riders and workers eligible for detention, and allowing police to arrest repeat offenders for low-level crimes that would otherwise warrant an appearance ticket.
Right now, New York is unusual among states in that it requires judges to decide whether to hold a criminal defendant primarily based on whether they are likely to return to court if released. Other states let judges consider whether a person might be a danger to the public.
Criminal justice advocates welcomed bail reform as bringing overdue fairness to a two-tiered system where people accused of low-level offenses — like Kalief Browder, a 16-year-old accused of robbing a man of a bag — languished in jail, unable to afford small amounts of bail while wealthy defendants were able to secure release.
Browder spent three years at New York City’s notorious Rikers Island jail complex — including nearly two years in solitary confinement — before the charges were dropped. He later killed himself.
Washington, D.C., pioneered the end of cash bail in 1992. Maine passed similar legislation last year for nonviolent misdemeanors and violations. An Illinois law eliminating cash bail and setting strict rules for ordering detention goes into effect in January 2023.
California’s 2018 law eliminating cash bail was blocked from taking effect by a 2020 referendum backed by the state’s bail bond industry, and cash bail remains in effect in the nation’s most populous state. Utah passed reforms in October 2020 meant to reduce reliance on cash bail, but repealed them months later after some lawmakers and sheriffs protested.
New York has already tweaked its bail reforms once. In April 2020, lawmakers expanded the list of crimes eligible for pretrial detention, including certain hate crimes, leaving the scene of a fatal accident, criminal possession of a weapon on school grounds, money laundering and criminally negligent homicide.
Mayor Eric Adams, a former New York City police captain who has also called for changes to bail reform , said New York is the only state that doesn't allow judges to weigh a defendant’s criminal history when setting bail.
Marie Ndiaye, of the Legal Aid Society's Decarceration Project, said a “dangerousness” provision would disproportionately impact people of color and only lead to more crowded jails.
“Bail reform has been widely successful, allowing our clients to stay in their communities with their families with no measurable impact on public safety," Ndiaye said. “The data on bail reform speaks for itself: The overwhelmingly majority of New Yorkers on pretrial release do not commit new crimes and return for future court appearances.”
The city comptroller's analysis, based on data from the city and the nonprofit New York City Criminal Justice Agency, found that re-arrest rates in the city haven't changed much since the reforms.
In 2021, an average of about 45,400 people were on pretrial release in New York City in any given month. Of those, an average of just under 1,900 were re-arrested, or about 4% according to the agency’s data.
In 2019, an average of around 53,300 were on pretrial release in any given month. Of those, an average of less than 2,300 were re-arrested, or about 4.3%.
Since the reforms, fewer people are getting held on bail pending trial. In 2019, judges in New York City set bail in 24,657 cases. In 2021, judges set bail in 14,545 cases.
That's done little to reduce strain on the city's crisis-plagued jails, Lander said.
At Rikers Island, where two inmates died on back-to-back days last week, the incarcerated population is back over 5,600 after falling below 3,900 inmates early in the pandemic.
“The facts of this report show that bail reforms is not responsible for an increase in crime and that it still actually is driving people to be held at Rikers for no reason other than that they are poor,” Lander said. “We should look elsewhere to figure out what kinds of public policy solutions and investments will keep all communities safe.”
Associated Press reporter Marina Villeneuve in Albany, New York contributed to this report.