New York Bail Reform:
Key Facts

BAIL REFORM EXPLAINED

• With notable exceptions, the current law requires courts to release most people charged with misdemeanors and  nonviolent felonies without money bail so that they can await their court dates from home without missing school,  losing their jobs or housing, and where they can continue to care for their families.  
• The reforms expanded non-monetary release conditions and pretrial services to help ensure that people make all  their mandatory court appearances. 
• As before, people charged with violent felonies and myriad other “qualifying offenses,” including many  misdemeanors and nonviolent felonies, remain bail eligible, leaving it up to a judge’s discretion whether or not to set  bail and in what amount. Judges may also remand (detain without bail) in any bail-eligible felony case. 
• Judges retain virtually unfettered discretion to set bail for people who are charged with a violent felony, persistently  skip court dates, violate a protective order, are rearrested on a second felony, are charged twice (or more) with any  alleged offense involving harm to a person or property, or are on parole or probation charged with felonies.  
• New York’s bail law has never allowed for pretrial jailing based on predictions of future “dangerousness” – legislators  rightly rejected it when they enacted a new bail law in 1971 and they did so again in 2019. This standard forces  judges to rely on unproven factors or on criminal histories or other qualifiers that are weighted with systemic  biases due to existing racial disparities in policing, housing, health care, and education. States that have added  dangerousness often end up with more, not less, people jailed pretrial on lower-level charges. 

Significant judicial discretion remains in the system after bail reform. So much so, that some judges have recently used that  discretion to dramatically increase the number of cases they set bail on from the broad range of still bail-eligible cases. In  New York City, this has resulted in a sharp increase in the number of people being sent to and held on Rikers Island, where  conditions are deadly, amidst a pandemic that is still raging behind bars. 

Bail reform gives substance to the presumption of innocence that is the foundation of our criminal justice system and  allows many thousands of New Yorkers who would have otherwise been unable to afford their freedom to fight their cases from home. In New York City, pretrial jailing for people facing the lower-level offenses impacted by bail reform is down  almost 50% since September of 2019.  

While the full impact of the 2019 reforms was blunted by 2020 rollbacks, the good news is that the bail reforms that are still  in place are working exactly as designed: reducing the state jail population without compromising public safety. It is a win/ win for all New Yorkers. 

HOW DID BAIL REFORM IMPACT THE JAIL POPULATION AND PUBLIC SAFETY?

• Pretrial jailing of people facing the lower-level offenses impacted by bail reform is down almost 50% in New York City  (the jurisdiction with the most available data) since September of 2019.  
• New York City’s recent spike in shootings and murders is tragic and must be taken seriously. That means following the  facts. All available data contradict the notion that bail reform is linked to this increase, much less a major driver of it.  
• Fewer than one percent of people on pretrial release in New York City are rearrested for a violent felony in any given  month, a rate that remained constant before and after bail reform.  
• The rise in shootings is almost certainly driven by the massive societal disruptions resulting from the pandemic. The  rise in homicides in New York City is matched or outpaced by increases seen in cities across the nation, regardless of whether those cities or states have taken steps to reform their justice system. 
• Furthermore, research has long shown that the overuse of jails can actually lead to more criminal activity and risks  undermining the health of individuals, families, and entire neighborhoods. Those who go into jail with challenges —  substance use, mental health concerns, joblessness, or unstable housing — tend to come out with those challenges  worsened. Studies in New York City and other jurisdictions across the country consistently show that people who are  sent to jail are more likely to be re-arrested in the future as compared to similarly situated people who were not.