Questions and answers about the state bail reform law

New York lawmakers made sweeping changes to the state’s bail laws in 2019 and 2020, reducing the number of crimes for which a judge can set bail on a defendant.

With statewide election campaigns underway, some candidates are trying to make bail a top issue. Here is a look at some of the facts and data included in a recent state report on the new bail law:

Q: What changed under the 2019 overhaul of the bail law?

A: Generally, almost all misdemeanors and nonviolent felonies are no longer subject to bail restrictions. That is, a judge wouldn’t be able to impose bail — money a person must pay to be released from jail prior to his/her trial — as a condition in many cases. If cash bail or a bond (a nonrefundable percentage of bail paid by a bail bond company) is set and a person can't pay it, he or she remains in custody till trial.

Q: What is the basic argument by lawmakers supporting the changes?

A: That the bail system essentially was a two-tiered justice system: One for suspects with the means to afford bail and gain their release while awaiting trial and one for those who don’t have the means.

They say too often poor defendants languished in jail for months or years because they couldn’t pay bail. The law was sparked in part by the infamous case of Kalief Browder, who was accused of stealing a backpack, sat in Rikers Island jail for three years because he couldn't pay $, 3000 bail and eventually was released in 2013 without being tried or convicted of a crime.

A 2015 report by New York’s chief judge said more than 50% of suspects who can’t make bail at their initial arraignment wind up staying in jail for the duration of the case, a situation he called intolerable.

Q: What did opponents argue?

While some wanted no changes, the state association of district attorneys said it could support some changes but wanted to be able to ask a judge to detain a suspect if he "poses a credible threat to an identifiable person or group of persons." Opponents shorthand this as the "dangerousness standard" — and note 49 other states give judges discretion to hold someone based on this. They especially point to New Jersey.

Q: Why New Jersey?

A: New Jersey changed its pretrial policies: Effective January 2017, defendants are detained when the pose a public safety risk. Otherwise, bail is used primarily for those who fail to appear in court or violate pretrial release conditions.

Meanwhile, studies show the number of people held on small amounts of bail in New Jersey has declined dramatically while the percentage of people released without bail who later allegedly commit other crimes has remained steady: Going from 13% in 2014 to 14% after the bail reform became effective.

Q: What happened to "dangerousness" argument?

A: It wasn’t included in the law adopted by the State Legislature and Gov. Andrew M. Cuomo in 2019 — blocked by opposition in the Democratic-controlled Assembly, which historically has been more liberal on criminal justice issues than the Senate.

Q: And the law was changed again 2020?

A: Right. More than 20 crimes were added back to the "bail eligible" list, including certain levels of sex trafficking, assault, possession of a weapon on school grounds, domestic violence, money laundering and aggravated vehicular assault.

Q: Why?

A: Republicans and some Democrats who supported the original law said it went too far, that too many serious crimes were left off the list. The push to restore more crimes to the list was led by Long Island Senate Democrats, who are seen as more moderate than their Democratic colleagues in the State Legislature.

The Senate supported changing New York's bail law to match New Jersey's but the Assembly blocked the idea.

Q: What has happened since?

A: A spike in violent crime in New York and across the nation during the pandemic has triggered calls to roll back the bail overhaul.

Some Republicans want a full repeal — which won’t happen in the Democratic-dominated State Legislature. Some Democrats renewed a push to allow a judge to consider "dangerousness" when weighing whether a suspect should be released or detained after being arraigned.

And it’s a statewide election year, so the issue quickly has become campaign fodder.

Q: Does the state have data to show the law’s impact?

A: Yes, but there are limits on drawing conclusions with the data.

Q: What are the highlights?

A: The key issue has been rearrests: Suspects who are arraigned and released, then commit crimes again before their original case is resolved.

The statewide statistics, over nearly 18 months, say:

• 20% of defendants arrested on a misdemeanor and then released are rearrested on some other charge before their original case was settled. That’s a slightly lower rate than for misdemeanor suspects who were released on bail: 22%.
• 2% of misdemeanor defendants were rearrested on a violent felony. About 3% of felony defendants were rearrested on a violent felony.
• The highest rearrest rate isn’t for those misdemeanor suspects released with no conditions or for those who had to post bail. It’s highest — 40% — for those released under some supervised conditions, such as wearing an ankle bracelet or mandatory check-ins with law enforcement. But even with this group the rearrest rate for a violent felony is 4%.

Q: Are there numbers for Long Island?

A: Yes, and, generally speaking, the Island numbers are lower than the state average.

In Suffolk County, the rearrest for all misdemeanor suspects who are released with or without monitoring is 12%. That covers any level of charge. The rearrest rate on violent felony charges was less than 1%.

In Nassau County, the rearrest rate for all misdemeanor suspects who are released with/without monitoring is 14%. The rearrest rate on violent felony charges was 1%.

If the original charge was a felony, the rearrest rate is higher.

In Suffolk, the rate for those charged with a felony, released then rearrested for something else is 31%. In Nassau, it was 20%.

But the rearrest rate for a new violent felony was small: 2% in Suffolk and 2.5% in Nassau.

Q: How does this compare to previous years.

A. That is the chief limitation of this data — there are no apples-to-apples comparisons for previous years. The Office of Court Administration and the Division of Criminal Justice Services compiled this data as directed by — and using categories specified by — state legislation.

Those agencies didn’t compile rearrest information in the same way for previous years. So you can’t really make a good comparison to, say, five or 10 years ago.