Opinion: In the Current Debate on New York’s Bail Laws, Data and Justice Lose

“By seeking credible data and nurturing a values-based conversation that better elevates justice, state leaders can both serve public safety interests and avoid an unjust burden on individuals and communities.”

With New York’s gubernatorial and legislative elections here, the state’s bail reform continues to incite controversy. Under the law, most nonviolent cases are no longer bail-eligible, while judges still have all options available for violent felonies, including bail.

Ideally, policymakers would have awaited rigorous research on the law’s effects and revised it based on evidence. But politics moves faster than research.

Since the spring of 2020, New York State experienced a significant spike in gun violence, mirroring similar or greater increases in other cities around the county that did not change their bail laws. But it didn’t take long for critics to spread unproven claims that bail reform is contributing to this spike, despite evidence to the contrary.

Public safety fears led legislators to amend the new law twice, making more cases eligible for bail in 2020 and 2022. The most recent amendments, though modest, will largely impact people charged with misdemeanors like petty theft, exposing them to short jail stays—an especially counter-productive approach linked to greater recidivism in New York and elsewhere.

The best way to measure the potential impact on public safety in New York is to compare the re-arrest rates of people who faced bail in 2019 with similar people who were released in 2020. This has not been done, yet prior research on bail reform in New Jersey and Chicago found no adverse impacts on safety.

In fact, contrary to the current public and political narrative, studies in other cities show that the trauma and socioeconomic repercussions of pretrial detention generally increase the likelihood of re-arrest.

Claims inaccurately linking bail reform to the rise in crime overshadow the law’s original intent—to promote justice by detaining fewer people in inhumane places like Rikers Island, reducing the role of money, and shrinking entrenched racial disparities.

Research by the Data Collaborative for Justice and others reveal four areas where bail reform has begun to realize these promises, albeit imperfectly.

First, the reforms have increased pretrial release as intended: from 83 percent to 92 percent of the state’s misdemeanors and 41 percent to 60 percent of its felonies (comparing 2019 to 2020). In 2020, this shift led about 19,000 fewer people to be detained statewide.

Second, pretrial release numbers have varied across the state in ways that challenge a public narrative heavily centered around anecdotes, high-profile incidents, and New York City. From 2019 to 2020, New York City saw the smallest increase in pretrial release compared to suburban counties like Suffolk, Nassau, and Westchester, and the rest of the state. Release rates for people charged with a felony grew by 11 percentage-points in the city, 23 points upstate, and 37 points in the suburbs. Because people in the city were more likely to be released even before reform, the new bail laws effectively shrunk vast regional differences in pretrial incarceration.

But third, flawed implementation has resulted in less diversion from jail than expected and a continuation of persistent racial disparities. For instance, though the reforms require courts to consider what people can afford when setting bail, there is no evidence that statewide bail amounts have changed. In fact, bail payment rates have declined in the city.

In addition, New York City judges are not following a science-based release assessment’s recommendations regarding the likelihood a person will return to court. While the assessment recommends that almost three-quarters of people charged with violent felonies be released on their own recognizance, the city’s judges did so in just 35 percent of such cases in 2020, dropping to 27 percent in the fourth quarter.

Fourth, the recent spike in violence—and resulting public discourse—may have further dampened implementation, as some judges may have been influenced by inaccurate claims linking pretrial release to crime. In the first quarter of 2020, the state saw its highest release rates and lowest jail populations. Since then, judges reversed course and re-increased their bail-setting on comparable cases. The onset of the pandemic makes it difficult to disentangle cause and effect but the end result is that in April 2022, the state’s pretrial jail population stood at nearly 10,800, almost 50 percent higher than two years earlier.

This reversion to bail spawned ballooning racial disparities in New York City. The gap between bail-setting for Black and white people charged with violent felonies grew from 7 percent to 21 percent by the end of 2020.

As debate continues regarding whether to let judges consider “dangerousness,” it is worth stating clearly that judges tend to inaccurately classify people as dangerous, leading to increased pretrial detention for those unlikely to be re-arrested. Moreover, judges have been least compliant with those provisions of the current law that rely on judicial discretion, like the requirement to consider the affordability of bail in cases still legally eligible for it.

If policymakers cannot maintain a steady hand, the most vulnerable New Yorkers face the greatest risk of future victimization and system involvement. By seeking credible data and nurturing a values-based conversation that better elevates justice, state leaders can both serve public safety interests and avoid an unjust burden on individuals and communities.

Olive Lu is a senior research associate and Michael Rempel is the director at the Data Collaborative for Justice at John Jay College of Criminal Justice.