NY bail reform: What the numbers tell — and don't tell

ALBANY — New York State lawmakers enacted sweeping changes to criminal justice laws in 2019 and 2020 with the aim of reducing the chances a person would sit in jail for months, or even years, on a low-level charge simply because he or she couldn’t post bail.

Going forward, a judge could not set bail for most misdemeanors and some nonviolent felonies, such as low-level burglaries, assaults and larcenies. Bail still could be set for other felonies, some domestic violence cases and misdemeanors involving violence. It quickly became a hot political issue and an effective one for Republicans during last year's elections on Long Island.

Now, a new statistical report provides a trove of data about the bail overhaul, 18 months after it took effect: How many defendants have been held on bail, released or released with electronic monitoring; how many of those were rearrested on a new charge; how many were accused of violent crimes. The data doesn't resolve the debate in part because it doesn't provide historical context for measurements but rather provides talking points for both sides.

The data, produced by the state Office of Court Administration and the Division of Criminal Justice Services, shows that 20% of defendants arrested on a misdemeanor charge and released were then rearrested on another criminal charge before their original case was resolved. On Long Island, the numbers are lower: 12% for Suffolk County; 14% for Nassau County.

But it also shows 2% of misdemeanor defendants statewide were rearrested on a violent felony — meaning 98% weren’t. On Long Island, the numbers were lower: 1% were rearrested for a violent felony in Nassau County, less than 1% in Suffolk.

A problem with determining context is that the new data provides no historical bench marks to fully assess whether people who are arraigned and released are getting rearrested at any different rate than in the past, law enforcement experts say. Because of this, there's no way to accurately determine whether the rearrest numbers are higher or lower compared with the years before bail reform, experts said.

That gives leeway for politicians and candidates to make claims about the data — especially in a statewide election year — even though a fuller measurement of the impacts might take another year or more, as it has in New Jersey.

"While there are lots of fantastic data about pretrial decision making, the information about rearrests is not going to answer the questions we all want to know," said Michael Rempel, director of the Data Collaborative for Justice at John Jay College of Criminal Justice.

"What we really want to know is, after a several-year period, are we making people safer or the opposite? You have to survey apples to apples over a long period," Rempel said. "It needs a rigorous analysis and that hasn’t happened yet."

That hasn’t stopped bail from becoming a tinderbox political issue, seized upon by officials of both parties and law enforcement as either a failure that’s led to rising crime or proof the overwhelming number of suspects released after being charged aren’t engaging in violent crime.

Opponents say many crimes have been allegedly committed by released defendants, though it's an argument mostly made through anecdotes rather than hard data.

A report by the Vera Institute of Justice found 13,452 defendants were being held on pretrial detention in local jails statewide in April 2019, when bail reform was approved by lawmakers; 8,519 in January 2020 when the law became effective; and 7,242 in April 2020 when the number hit a low mark.

In early 2020, Senate Democrats from Long Island — feeling political blowback on bail in their districts — led a push to amend the law that eventually led to 20 crimes being added back to the "bail eligible" list, such as sex trafficking, failure to register as a sex offender, domestic violence involving attempted strangulation and money laundering in support of terrorism. After this change, the number of defendants being held on pretrial detention increased to 9,731 in December 2020.

While much of the focus has been on violent crime in New York City, the Associated Press recently reported the number of killings there numbered 488 over 12 months — on par with the last decade average. The number was higher than the record low of 292 in 2017 but far below the early 1990s when the city annual average was more than 2,000.

Meanwhile, other cities — not just major ones like Chicago and Philadelphia, but also Fort Worth and Oklahoma City — saw big increases in killings, AP reported.

John Jay's Rempel, asked whether a public expectation based on declining crime levels over roughly 20 years might be fueling reactions, said it might play "some role in today's conversation" about crime and bail. But at this point, the pandemic stands out as the common factor in the increase in killings in many states.

"As a researcher, my objection is strictly that attributing the increase of the past two years to bail reform is unsupported given what evidence is presently available," Rempel said. "I think at times public officials may reference multiple possible explanations for the gun violence increase and put bail reform and COVID-19 on the same level, as if they are equally plausible factors. But this approach doesn't reflect the reality of overwhelmingly better evidence and better logic that dynamics associated with the pandemic would explain a nationwide trend that is in no way limited to New York and that began soon after the pandemic's onset."

Bail critics say the impact of the overhaul of the law shouldn't be shortchanged.

"Putting aside the statistics, I mean that’s important to prove our point, but I think you talk to anybody, it’s common sense that you don’t let dangerous criminals back out on the street," said Assembly Minority Leader Will Barclay (R-Pulaski) at a news conference. "I don’t need a hundred statistics to prove to me that it’s a bad policy."

Supporters counter that the low rearrest rate for violent felonies undercuts the narrative bail reform opponents are promoting.

"The data says 98% of people who are let out without bail … 98% do nothing violent, commit no violent crimes between the time they are set free and the day they reappear in court," said Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers).

Assembly Speaker Carl Heastie (D-Bronx) noted that there’s a national spike in crime since the pandemic began — even in states that didn’t change bail laws. Yet in New York, the bail overhaul gets the blame, he said.

"Part of my frustration is anything bad that happens, ‘it’s gotta be bail reform’s fault,’" Heastie said at a recent news conference. "I think it’s unfortunate to link the rise in gun violence solely on bail. If that’s the case, why are we having gun problems all over the country?"

He added: "I can’t imagine 100% of the people before we did bail reform didn’t commit other crimes."

Rossana Rosado, commissioner of the state Department of Criminal Justice Services, told Albany lawmakers at a recent budget hearing that people who posted bail were rearrested at a higher rate than those released without bail — 32% to 20%.

But with all the numbers, Elizabeth Nevins, a Hofstra University Law School professor, said "it’s really hard to draw conclusions" because it’s too early.

"The point about the bench marks (for measuring) is key," Nevins said. "I don’t think they have the overall statistics to say there’s an overall increase in crime and it’s because of bail reform. I don’t think the data bear that out."

She added: "A case here and a case there and that’s a terrible way to make policy."

Even when judges have authority to order bail, they don’t always exercise their authority to do so.

Take felony charges for criminal possession of a weapon. The state data says that judges in Nassau imposed bail in 50% of the cases; Suffolk, 55%.

For felony-level robbery charges, Nassau imposed bail 53% of the time; Suffolk, 67%.

The data doesn’t indicate whether the local district attorney recommended bail, which can influence a judge’s decision.

The debate over the new numbers obscures larger points, people on either side argue. For opponents of the bail overhaul, more suspects released likely means more crimes, even if the rate of rearrest is low.

"It is incumbent upon the legislature and governor to protect every single New Yorker," Barclay, the Assembly minority leader, said at a news conference. "We cannot afford to stand idly by with these current policies in place. People's lives are at stake."

It's also become a chief campaign issue for Rep. Tom Suozzi, is challenging Gov. Kathy Hochul in a Democratic gubernatorial primary in June.

"New Yorkers are overwhelmingly concerned about crime and safety," said Suozzi (D-Glen Cove), criticizing Hochul for not trying to give judges more discretion on detaining suspects.

Proponents say the debate over rearrest muddies what is supposed to be the point of bail: To ensure people return for court proceedings.

"We misunderstand bail when we try to use it to predict who might commit crimes. That’s not what bail is for," Hofstra’s Nevins said. Meanwhile, she said many people who lack the means to post bail wind up staying long stretches in dangerous places such as Rikers Island, the New York City jail, even though they’ve yet to be convicted.

Additionally, activists said sometimes defendants plead guilty just to get out of jail after being held for long stretches on bail.

"I know personally the devastation pretrial jail can cause," said Marvin Mayfield, an activist with the Center for Community Alternatives, at a State Capitol rally last month.

"I spent 11 months incarcerated on Rikers Island on $10,000 bail I couldn't afford and accused of a burglary I had nothing to do with," he said, recalling an episode three decades ago. "I lost my job. I lost my car. I lost my apartment. I ended up taking a guilty plea to end this suffering."

In 2020, State Senate Democrats — influenced by their moderate Long Island wing — pushed to change the system again, proposing something similar to New Jersey’s system: Eliminate bail altogether but give judges discretion to detain defendants who they think posed a threat to the community.

Court officials and monitors say the overhaul in New Jersey, which took effect in 2017, worked as intended: The number of defendants held on small amounts of bail dropped while the recidivism rates for defendants who were released held steady.

But Assembly Democrats — who generally are more liberal on criminal justice than their Senate counterparts — said no to a New Jersey-style system. In a compromise, more than 20 crimes were added back to the bail eligible list.

Republicans — and some Democrats including Suozzi and New York Mayor Eric Adams, a former police captain — are still pushing for more judicial discretion. Adams, who made crime a centerpiece of his successful 2021 election campaign, said every state but New York allows a judge to consider a defendant's "dangerousness." That is, they allow a judge to impose bail or outright remand a defendant if the judge believes the person poses a threat to the community.

Stewart-Cousins countered that such leeway is what led to a disproportionate share of minority defendants being held on bail prior to the overhaul.

"We cannot pretend there hasn’t been judges’ discretion and that discretion has led, in some cases, nationally and not just here, to a disparity of who gets held and who doesn’t get held," Stewart-Cousins said.