After years of steady decline, the city’s jail population started going up this year. More than 4,700 people were in jail in November, compared to 3,800 at the end of April, based on the latest complete data available from the city.  The majority are people who've been accused of a crime but were not able to pay bail while waiting for their cases to play out in court.

That’s still much lower than the nearly 7,000 people in jail at the end of 2019. But it’s not what was expected in the year when New York enacted a groundbreaking new bail reform that prohibited judges from setting bail on most offenders, except those charged with violent felonies. 

The law was intended to reduce the number of people spending time in jail simply because they couldn’t afford bail, a disproportionate number of whom are Black and Latino. Proponents of reform cited the harmful impact of decarceration. They often pointed to the case of Kalief Browder, a young Black man who spent three years on Rikers Island on a petty robbery charge because he couldn’t pay the $3,000 bail. Browder committed suicide after his release, and the city settled with his family for $3.3 million over his treatment in jail.

So what happened with this new era of bail reform? First, in a year everyone calls unprecedented, COVID-19 swept through Rikers in March. Under pressure to reduce transmission of the virus, about 1,400 people were released - a combination of people serving city sentences and pre-trial detainees. That helped the jail population fall to its lowest level. 

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Also at play was a backlash over bail reform, that prompted the state legislature to amend the bail law, making additional offenses eligible for bail. These revisions took effect in July and the jail population has been rising ever since.

But violent crime has also been increasing. While overall crime is flat through the first 11 months of the year, some of the most serious crimes are on the rise. According to the NYPD there were 422 homicides by the end of November, the highest number since 2012. There were also 1412 shootings - an increase of 95.8 percent over last year.

It’s much too early to measure the impact of two big changes to the bail laws in less than a year.  But we can take a close look at the data to see what role the bail laws and crime trends played in the rising jail population. Here are some findings.

Those charged with violent felonies continue to account for the greatest share of pre-trial detainees - in fact, their proportion of the jail population went up in 2020.

In November, suspects charged with violent felonies accounted for more than two-thirds of pre-trial detainees. By contrast, according to city data, they accounted for less than 50% a year earlier.

By this simple measure, one could argue the reform did what it was intended to do. A smaller portion of those in jail are charged with non-violent felonies. But the overall number of pre-trial detainees has been growing since the rollback took effect in July.

“I’m attributing a 7-to-11% pre-trial jail increase over what it would have been, due to the bail amendments,” said Michael Rempel, director of jail reform at the Center for Court Innovation. 

Rempel published those figures in an analysis in November that found the growth was linked to the fact that several charges, such as burglary in the second degree and vehicular assault, were not eligible for bail in January but were again in July.

“The judges now have more discretion to set bail on a wide variety of charges that they could not have set bail on during the January reform,” added Hettie Powell, managing director of Queens Defenders. She said the revision in July also allowed judges to set bail on repeat offenders who commit crimes that “harm an identifiable person or property.” What that means isn’t defined by state penal law, which means individual judges may interpret it differently. 

However, Rempel does not believe the goal of bail reform was “undone” by the July amendments. ‘When the original bail reforms first passed on April 1, 2019, the pretrial detention portion of the jail population was at 4,996,” he said, compared to about 3,300 in November, 2020. 

When the original bail reform went into effect in January, it had a dramatic impact on arraignment outcomes. The above chart shows a cliff with a steep drop in the percentage of both violent and non-violent defendants having to post bail. Judges were encouraged to use the least restrictive means of ensuring that a suspect returns to court. 

Many opted to give those accused of violent felonies supervised release. It’s an alternative to incarceration that - with few exceptions - was previously only available to people charged with lesser offenses. It relies on caseworkers to ensure defendants return to court while encouraging them to get social services. 

According to the Mayor’s Office of Criminal Justice, 22.5% of those charged with violent felonies in January were given supervised release, compared to only 2.4 percent two months earlier. This explains why only 37.6% of people charged with violent felonies had bail set in January versus more than 55% in November, 2019. Judges were trying alternatives.

That changed over the summer and fall, as bail was increasingly set on those charged with both violent and non-violent felonies. Public defenders said the bail amendment wasn’t the only reason. 

When the pandemic struck the jails in March, judges and district attorneys were hesitant to set bail. They knew social distancing was too difficult and that inmates were getting sick and dying. But as the number of COVID-19 cases declined by the summer, Maryanne Kaishian, senior policy counsel at Brooklyn Defender Services, described what she called “empathy fatigue.” She said bail was no longer so unpalatable.

Tamiko Amaker, chief administrative judge for the New York City criminal courts, agreed jail wasn’t considered as dangerous in the summer as in March and April. But she said the main reason judges began setting bail more often had to do with the crime wave. 

“They're seeing one murder after another, or seeing one shooting after another, coming into their courtrooms,” she explained. These arraignments were conducted remotely but Amaker said prosecutors and defense attorneys still got to make their best case. 

Neither the original bail reform nor the rollback in July allowed judges in New York to consider whether a suspect is dangerous (the standard in most other states). Judges can only consider the seriousness of the charge and a defendant’s risk of flight. Despite changes making it easier to set bail in certain cases, the NYPD believes judges are still going too soft by granting release with supervision in some cases. The NYPD did not cite any data on the number of people released with supervision who are rearrested.

The decisions by judges can be tracked in jail admissions data. Among all pre-trial detainees accused of felony charges through October, 24% were charged with weapons possession in the second degree compared to 16% last year. 

Criminal contempt accounted for 26% of the non-violent felony charges admitted to jail through October compared to 14% last year. It’s a crime associated with domestic violence, which has also been on the rise.

But public defenders warn against drawing too many conclusions from those charges, which are still accusations, not convictions. “What we’re seeing is a rise of incarcerating people who have not used the guns that they are accused of possessing,” said Kaishian, of Brooklyn Defender Services.

“I don't want to minimize the impact and the harm of gun violence, which is very, very real,” she explained. “Those numbers have risen this year. But I also want to caution people against the knee-jerk reaction to simply say that the answer is to throw people in jail whenever they possess a gun.”

She said better solutions would be to invest in community programs like violence interrupters who can mediate between rival gangs. A recent study by the Center for Court Innovation found many men in neighborhoods with gang violence carry guns to protect themselves. 

Is Bail Reform Driving Crime?

Despite the rising share of people accused of gun crimes being admitted to jail while awaiting trial, the NYPD still claims too many defendants walk free after being accused of serious crimes. Police say this contributes to a climate in which criminals think they can get away with more. 

In data provided for a NY Post editorial, the police department claimed 88% of more than 3,700 people arrested this year on gun charges are now free. But it’s not known whether they were released on their own recognizance or posted bail. The NYPD declined to answer questions about this from Gothamist/WNYC.

Weapons possession is still a violent felony; public defenders say judges could always set bail and continue to do so. 

The NYPD also said at least 247 of those arrested for gun crimes and released were either re-arrested for a different crime within 60 days of the initial arrest, or are being sought for re-arrest. 

According to the Mayor’s Office of Criminal Justice, about 34,000 defendants were arraigned between March and November. Thirteen percent of those released after paying bail were rearrested in that time period, and 6% of those released on their own recognizance were rearrested. 

The agency said this data is still preliminary, but less than 1% were charged with murders, and about 1% with weapons possession. This means people are getting arrested again and charged with violent crimes but is the number large enough to be driving the crime wave?

“We've seen increases in gun violence throughout the country, in many of the major cities,“ said Jeffrey Coots, director of the From Punishment to Public Health initiative based at John Jay College of Criminal Justice. 

He said big increases in shootings and other crimes are much more likely related to the combination of the COVID-19 pandemic, physical and social isolation, and the cratering economy.

“When you look at who are the individuals who were arrested for these types of crimes -  gun possession, shootings, burglaries, robberies - they are mostly young men between the ages of 15 and 30,” he said. “Those people are the first to lose their jobs in an economic downturn.”

He also said they’re likely to become disengaged from remote instruction at school, and have fewer positive activities to keep them busy. 

Coots acknowledged a certain portion of these individuals do get arrested again for a variety of charges in the near term. But he said, “It is not happening often enough to explain why there are a thousand more burglaries” in June of this year than in 2019 “because there's not a thousand more people being released on bail based on the new bail reform laws.” 

We saw one more notable trend this year. Average bail amounts are higher:

Public defenders worry judges may be getting more punitive due to rising crime.  “The judges are under a lot of pressure to make sure that they set the right bail to so-called keep the community safe,” said Powell, of Queens Defenders.

But Amaker said average bail amounts are up because “the pool of cases that you're seeing involves a lot more violent felony” charges. 

In an odd twist, city data shows that as bail amounts got higher so did the number of people making bail within 30 days. Between June and October, 40 to 47% of people were making bail compared to 11 percent between January and May. The new bail law let judges provide more flexible ways of making bail, such as partially secured bonds that require a lower down payment. 

Data from the city also show Blacks have consistently accounted for about 58% of all detainees and Hispanics make up almost 32%. Racial demographics didn’t budge after the bail law changed in January or after it was amended, strongly suggesting bail reform has yet to achieve its goal of reducing the number of low-income people of color held in jail. 

But 2020 is a year like none other, and criminal justice experts will be debating the impact of bail reform and the causes and effects of the crime wave for years to come.

Beth Fertig is a senior reporter covering immigration, courts, and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.